PEER Legal Analysis COVID

Report to the Mississippi Legislature
A Legal Analysis of Mississippi’s

Emergency Powers Statutes and Actions
Taken During the COVID-19 Pandemic
#647
November 17, 2020
The Mississippi Legislature
Joint Committee on Performance Evaluation and Expenditure Review

PEER Committee
SENATORS REPRESENTATIVES
LYDIA CHASSANIOL TIMMY LADNER
Chair Vice Chair
KEVIN BLACKWELL RICHARD BENNETT
DEAN KIRBY Secretary
CHAD McMAHAN CEDRIC BURNETT
SOLLIE NORWOOD CAROLYN CRAWFORD
JOHN POLK BECKY CURRIE
CHARLES YOUNGER JERRY TURNER
PERCY WATSON
TELEPHONE: Post Office Box 1204 OFFICE:

(601) 359-1226 Jackson, Mississippi 39215-1204 Woolfolk Building, Suite 301-A
501 North West Street
FAX: James A. Barber Jackson, Mississippi 39201
(601) 359-1420
Executive Director
www.peer.ms.gov
November 17, 2020
Honorable Tate Reeves, Governor

Honorable Delbert Hosemann, Lieutenant Governor
Honorable Philip Gunn, Speaker of the House
Members of the Mississippi State Legislature
On November 17, 2020, the PEER Committee authorized release of the report titled A Legal
Analysis of Mississippi’s Emergency Powers Statutes and Actions Taken During the COVID-
19 Pandemic.
Senator Lydia Chassaniol, Chair
This report does not recommend increased funding or additional staff.

Table of Contents
Letter of Transmittal ....................................................................................................................................... i
Report Highlights ............................................................................................................................................v
Introduction ...................................................................................................................................................... 1
Authority ................................................................................................................................................. 1
Scope and Purpose ................................................................................................................................ 1
Method ..................................................................................................................................................... 1
What is the History and Scope of the Executive Branch’s Powers to Address Emergencies in
Mississippi?... ......................................................................................................................................... 3
U.S. Supreme Court Decision Relative to Emergency Powers....................................................... 3
Mississippi Supreme Court Decision Relative to Emergency Powers ......................................... 5
Mississippi’s Early Laws Addressing Emergencies ......................................................................... 6
Mississippi’s More Recent Laws for Addressing Emergencies ..................................................... 8
Were Mississippi’s Emergency Powers Laws Adequate to Protect Mississippi Citizens from the
Threat of the COVID-19 Pandemic? ................................................................................................. 11
Criteria for Evaluating the Adequacy of a State’s Emergency Powers Laws ........................... 11
Adequacy of Mississippi’s Current Emergency Powers Laws..................................................... 12
Were the Actions Taken by State and Local Government Officials During the COVID-19 Pandemic
Appropriate? ........................................................................................................................................ 19
State Government Officials’ Responses to the COVID-19 Pandemic ........................................ 19
Local Government Officials’ Responses to the COVID-19 Pandemic ....................................... 25
Are There Statutory Changes to Mississippi’s Emergency Powers Statutes that the Legislature
Should Consider? ................................................................................................................................ 29
Additional Recommendations .......................................................................................................... 30
Appendix A: Jacobson in the Era of COVID-19: Appeals to the Federal Courts ............................... 31
Appendix B: COVID-19 Cases in the State Courts .................................................................................. 42
Appendix C: Model Acts and Their Critiques .......................................................................................... 48
Appendix D: Statutory Limitations on the Duration of a Declared Emergency................................ 53
PEER Report #647 iii

List of Exhibits
Exhibit 1: Appointments Affected by Executive Order 1499 .......................................................... 24
iv PEER Report #647

PEER Report #647 v
vi PEER Report #647
A Legal Analysis of Mississippi’s
Emergency Powers Statutes and Actions
Taken During the COVID-19 Pandemic
Introduction
Authority
In light of the COVID-19 worldwide pandemic, the PEER Committee reviewed state laws
concerning the state’s capacity to deal with such emergencies. The Committee conducted
this review in accordance with MISS. CODE ANN. Sections 5-3-51 et seq. (1972).
Scope and Purpose

Following Governor Tate Reeves’s March 14, 2020, declaration of a state of emergency
due to the COVID-19 pandemic, it became obvious that Mississippi would face a public
health emergency of major proportions. The government’s response to the pandemic
required the Governor, the Mississippi Emergency Management Agency (MEMA), the
Mississippi Department of Health (MSDH), and local governments to rely on the state’s
emergency powers and issue orders that were controversial and intrusive since they
limited how Mississippians functioned in their everyday lives.
This report examines Mississippi’s statutes that govern the state’s response to emergency
situations, specifically public health pandemics. In conducting this review, PEER sought
to answer the following questions:
1. What is the history and scope of the executive branch’s powers to address
emergencies in Mississippi?
2. Were Mississippi’s emergency powers laws adequate to protect Mississippi
citizens from the threats of the COVID-19 pandemic?
3. Were the actions taken by state and local government officials during the COVID-
19 pandemic appropriate?
4. Are there statutory changes to Mississippi’s emergency powers statutes that the
Legislature should consider?
Method
In conducting this review, PEER reviewed:
• literature on the evolution of modern laws dealing with public health emergencies;
• the history of Mississippi’s statutes dealing with the executive branch’s powers to
address emergencies of varied types;
• Mississippi’s current emergency powers statutes in light of several model laws and
constitutional case laws from the U.S. Supreme Court, Mississippi courts, and
other U.S. jurisdictions; and,
PEER Report #647 1

• executive proclamations and orders in light of the powers conferred upon the
executive branch of government by the Mississippi Constitution of 1890 and
Mississippi statutes.
2 PEER Report #647

What is the History and Scope of the Executive
Branch’s Powers to Address Emergencies in
Mississippi?
Legal authority for executive responses to emergencies has evolved incrementally over
the past 100 years from narrow statutes and constitutional mandates designed to address
specific issues, such as public health quarantines, or the suppression of insurrection or
riots, to modern comprehensive statutes designed to ensure that state and local agencies
are prepared to face the wide ranges of natural, technological, and man-made disasters
that may occur at any time. Mississippi’s current body of emergency management
statutes provides the Governor, executive branch agencies, and local governing
authorities with broad powers to carry out emergency management functions to protect
the health and welfare of Mississippi citizens.
U.S. Supreme Court Decision Relative to Emergency Powers

In its Jacobson v. Commonwealth of Massachusetts decision, the U.S. Supreme Court
concluded that when addressing emergencies, a state can adopt regulations to
protect the many in the face of a threat, even if the regulations impair the liberties
of the few.
The U.S. Constitution reserves to the states a broad authority to legislate for the health
and welfare of each state’s residents. This authority is generally referred to as police
power,1 with emergency powers being a subspecies of police power. Emergency response
legislation in the United States presumes the existence of cooperative federalism2 in which
the federal government and the states have critical roles. For example, this cooperative
federalism is exhibited in a response to hurricanes and floods where the state and its
political subdivisions act to address the immediate problems of public order and health,
with the federal government acting to provide economic, and in some cases, technical
assistance essential to long term issues of recovery.3 While considerable debate exists as
to the scope of the federal government’s role in addressing pandemics, long established
practices, statutes, and court decisions have articulated the roles and responsibilities of
the states in addressing emergencies including epidemics, pandemics, and other public
health emergencies.
Jacobson v. Commonwealth of Massachusetts
The constitutional breadth of a state’s police power to protect its residents from public
health threats was first set out in a landmark decision of the United States Supreme Court,
1
"The states' core police powers have always included authority to define criminal law and to protect
the health, safety, and welfare of their citizens.” See Wilcher v. State, 227 So.3d 890, (Miss. 2017).
2
Cooperative federalism refers to a concept in which the state governments, local governments, and the
federal government share responsibility in the governance of the people. They cooperate in working out
details concerning which level of government takes responsibility for particular areas and creating
policy in that area. The concept of cooperative federalism put forward the view that the national and
state governments are partners in the exercise of governmental authority. It is also referred to as the
new federalism.
3
Examples of federal assistance include disaster recovery funds made available to states through the
Federal Emergency Management Agency under the Stafford Act and administered for the benefit of
the states and local governments by state emergency management agencies.
PEER Report #647 3

Jacobson v. Commonwealth of Massachusetts.4 In Jacobson, Massachusetts enacted
legislation authorizing local governments to require immunizations that in the opinion of
the locality’s governing authorities were necessary to protect the public health. The City
of Cambridge noted that smallpox cases had been increasing in that community and
ordered the residents of the City to be vaccinated.
When Jacobson refused vaccination, the City proceeded criminally against him. Jacobson
asserted that the ordinance adopted by the City violated the United States Constitution—
specifically the Fourteenth Amendment—and guaranteed against deprivations of life,
liberty, and property without due process of law and further violated the “spirit” and the
preamble of the Constitution. Jacobson was found guilty, with the Massachusetts
Supreme Judicial Court upholding his conviction.
On appeal to the United States Supreme Court, Jacobson raised the same arguments.
After rejecting the appellant’s general arguments which were based on the preamble and
the “spirit” of the Constitution, the Court moved on to determine if the statute in question
violated the appellant’s liberty that was protected by the Fourteenth Amendment.
To preface its analysis, the Court noted that police powers are broad and generally
empower the state to enact laws to protect the public health and safety of its citizens.
These may include quarantine laws and a broad range of public health measures.
Additionally, the state may invest local governments with the power to enact regulations
addressing the protection of public health.
As to the appellant’s liberty, the Court noted that under our system of government liberty
does not mean a license to do what one wants. Specifically, the Court quoted from
Crowley v. Christensen:5
The possession and enjoyment of all rights are subject to such reasonable
conditions as may be deemed by the governing authority of the country
essential to the safety, health, peace, good order and morals of the
community. Even liberty itself, the greatest of all rights, is not unrestricted
license to act according to one's own will. It is only freedom from restraint
under conditions essential to the equal enjoyment of the same right by
others. It is then liberty regulated by law. In the constitution of
Massachusetts adopted in 1780, it was laid down as a fundamental principle
of the social compact that the whole people covenant with each citizen, and
each citizen with the whole people, that all shall be governed by certain laws
for "the common good," and that government is instituted "for the common
good, for the protection, safety, prosperity and happiness of the people, and
not for the profit, honor or private interests of any one man, family or class
of men." The good and welfare of the Commonwealth, of which the
legislature is primarily the judge, is the basis on which the police power rests
in Massachusetts...6
The Court concluded that when addressing emergencies, regulations can be adopted to
protect many in the face of a threat, even if those regulations impair the liberties of the
few. For enactments to be constitutional, they must be:
• reasonable exercises of the state’s police powers; and,
• not be a plain, palpable invasion of rights secured by the fundamental law.
4
Jacobson vs. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, (1905).
5
Crowley v. Christiansen, 137 U.S. 86, 89, 34 L. ed. 620, 621.
6
Supra.
4 PEER Report #647

In concluding that the regulation met these criteria, the Court found that the legislative
decision to mandate vaccination, while not unanimously accepted by experts, was a
reasonable means of protecting the public that is supported by many countries. Further,
it was not for the court to substitute its judgment for that of the Legislature in view of
the fact that vaccination is considered by some to be a reasonable response to the problem
of epidemics. Likewise, the law could not require an arbitrary result in a case, such as a
requirement that someone medically unfit for vaccination be vaccinated. Further, the
Court balanced the appellant’s general concept of “liberty” against what the majority
considered to be the community’s need for protection against a particularly dangerous
disease. Under the conditions outlined in the case, the Court affirmed the conviction of
Jacobson.
While much has changed since Jacobson was decided, regarding the Court’s recognition
of fundamental rights protected by the U.S. Constitution, recent cases addressing issues
posed by the COVID-19 pandemic have cited Jacobson and have found its deferential
constitutional tests requiring minimal scrutiny of emergency measures controlling, with
some exceptions, particularly in instances where restrictions singling out religious
services impaired the right to free exercise of religion.7 These recent cases show that a
court’s analytical approach to certain liberty issues may differ somewhat from that
employed by the Court in Jacobson, but that most emergency measures to protect the
public health are still widely upheld.
Mississippi Supreme Court Decision Relative to Emergency Powers
In its Hawkins v. Hoye decision, the Mississippi Supreme Court upheld as reasonable
a legislative delegation of the state’s police powers to a local government to regulate
health conditions.
Roughly contemporaneous with Jacobson is a case from the Mississippi Supreme Court
which follows the logic of Jacobson regarding the police powers of the state extending to
public health measures designed to protect citizens from infectious disease.
In the 1914 case Hawkins v. Hoye,8 the Mississippi Supreme Court upheld the
constitutionality of the Mississippi State Board of Health rules that were adopted to
ensure that dairy cows infected with tuberculosis could not be used in the production of
milk sold for human consumption. In so doing, the Court reasoned that:
• the adoption of statutes to protect the health of Mississippi residents was a valid
exercise of the police powers of the state;
• the rules of the State Board of Health that carry forth the policy of protecting the
health of residents did not constitute an unconstitutional delegation of the
Legislature’s powers; and,
• the rules that prohibited sellers of milk whose cows were infected with
tuberculosis did not constitute an unconstitutional taking of property.9
The following passage from Hoye echoes the reasoning in Jacobson:
The regulation is within the police power of the state. It is in aid of good
health and consequently tends to the welfare and safety of the people.
Tuberculosis is a disease dangerous and destructive to human life. It is
recognized that tuberculosis may be communicated to human beings by use
7
See Appendix A for recent federal appeals court cases applying Jacobson in COVID-19 settings.
8
Hawkins vs. Hoye, 108 Miss. 282, 66 So. 741, (1914).
9
Supra at 743-744.
PEER Report #647 5

of milk from cows affected with the disease. Therefore, it was proper for
the board of health, the body empowered and enjoined by the statute to
supervise the health interests of the people and to prevent the spread of
epidemic diseases to make this regulation.10
Subsequently, the Mississippi Supreme Court upheld as reasonable a legislative delegation

of the state’s police powers to a local government to regulate health conditions by
requiring that children be inoculated for smallpox as a precondition to being admitted to
public schools,11 and a general requirement that Mississippi public school children be
inoculated as a precondition to their being admitted to school.12
Thus, Mississippi state courts have long held that the Legislature may enact reasonable
laws that rationally advance the state’s interest in protecting the health and welfare of its
citizens and residents.
Mississippi’s Early Laws Addressing Emergencies
Mississippi law addressing emergencies has evolved incrementally since the

beginning of the twentieth century with the laws initially focusing on emergencies
involving riots, insurrection or military threats, and communicable disease
epidemics.
As with most states, Mississippi’s early emergency powers statutes addressed the basic
physical protection of the state’s citizens.
Riots and Insurrection or Military Threats
While the National Guard has evolved over the past century into an important component
of the nation’s national defense strategies, the militia and the National Guard have always
been important in maintaining peace and security inside Mississippi’s borders. Article 9,
Section 217 of the Mississippi Constitution, which has antecedents dating back to 1817,13
provides:
The Governor shall be Commander-in-Chief of the militia, except when it is
called into the service of the United States, and shall have power to call forth
the militia to execute the laws, repel invasion and to suppress riots and
insurrections.
Additionally, state law has long provided authority to the Governor to deploy the National
Guard to address unlawful assemblies or breeches of the peace as well as the authority to
deploy the National Guard to assist the civil authorities in certain cases when such
authorities believe assistance is necessary.14
10
Supra at 744.
11
See Hartman v. May, 168 Miss. 477, 151 So. 737, (1934).
12
See Brown v. Stone, 378 So 2d 318, (Miss. 1979) cert. den’d. 449 U.S. 887, 101 S.Ct 242, 66 L. Ed
2d 112, citing Jacobson as authority.
13
See Constitution of 1817, Article “Militia” Section 4; Constitution of 1832, Article “Militia” Section
4; and Constitution of 1868, “Article IX” Section 4.
14
As examples, See Section 5540, Code of 1930; Section 8519-81 et seq. Code of 1942; and MISS.
CODE ANN. Section 33-7-301 and 33-7-309 (1972). See also Brady v. State, 91 So.2d 751, 229 Miss.
677, (Miss. 1957); McBride v. State, 221 Miss. 508, 73 So.2d 154, (Miss. 1954); and State v. McPhail,
182 Miss. 360, 180 So. 387, (1938), involving the use of the National Guard to conduct searches
6 PEER Report #647

Communicable Disease Epidemics
At the beginning of the twentieth century, infectious diseases were the leading cause of
death in the United States15 and public health programs were organized primarily at the
state and community levels to address the problems of epidemics. In Mississippi, diseases
such as yellow fever, smallpox, and tuberculosis were serious threats to the well-being of
residents.
In 1898, the Mississippi Legislature enacted legislation directing the Mississippi State
Board of Health (Board) to “act upon virulent, contagious epidemic diseases.”16 Regarding
epidemics, the law provided:
When yellow fever, cholera, dengue, smallpox, or other virulent epidemic
contagious disease shall make their appearance in the state, the state board
of health shall take charge of the infected district or locality, and shall make
such rules and prescribe such measures as it may deem necessary to prevent
the spread of the disease, or to suppress it…
To provide the Board with the tools to fight epidemics, the Legislature acted to empower
the Board to impose quarantines,17 to require physicians to report on the occurrences of
certain diseases,18 and to authorize the Governor to direct the militia to aid in any
enforcement efforts required by the Mississippi State Board of Health.19
As the twentieth century progressed, additional powers were given to the Board to
address the serious issues associated with the spread of tuberculosis and smallpox. In
1916, Mississippi established a sanatorium for the care of patients suffering from
tuberculosis. The hospital became the treatment facility for patients who could not be
properly cared for in the community, or who refused to follow the course for treatment
prescribed by their county health officer. Civil commitment to the sanatorium was
provided for in law for such recalcitrant patients who had to remain at the sanatorium
until released by the facility director.20
The Mississippi State Board of Health was also given considerable power to deal with
persons infected with smallpox. Counties were also empowered to adopt mandatory
vaccination ordinances under which persons could be forced to undergo vaccination.
Additionally, vaccinations could be required of school children as a precondition of
admittance to a public school.21
In general, Mississippi laws have long provided for a swift response to the threat of
communicable diseases, and have provided state and local governments with the power
to confine or quarantine persons, or even destroy property that may in some way threaten
the safety of Mississippi residents regarding the spread of communicable diseases.
and seizures of illegal liquor in localities where there was “resistance to the execution of the
laws.”
15
Tavia Gordon, “Mortality in the United States 1900-1950,” Public Health Reports, Vol. 68, Number
4, (April 1953); and “Achievements in Public Health, 1900-1999, Control of Infectious Diseases,
Morbidity and Mortality Weekly Report,” Center for Disease Control, (District of Columbia: July 30,
1999).
16
Section 2, Chapter 79, Laws of 1898.
17
18
19
Section 2501, Code of 1906.
20
Chapter 109, Laws of 1916; Chapter 304, Laws of 1956.
21
Chapter 108, Laws of 1900; and Chapter 17, Extraordinary Session Laws of 1953.
PEER Report #647 7

Mississippi’s More Recent Laws for Addressing Emergencies
Since World War II, Mississippi’s more recent emergency powers laws have
transitioned from the realm of civil defense to address a broader range of threats
posed by natural, man-made, and technological emergencies.
Mississippi’s early statutes regarding emergencies were narrowly tailored to address

specific types of emergencies. The move toward more comprehensive emergency powers
statutes that placed broad authority with the Governor began in 1942.
Civilian Defense
Chapter 206, Laws of 1942, provided a means of coordinated civilian defense planning to
address the demands of a war effort that entailed mobilizing not only an army, but the
productive functions of society. Passed after the United States declared war on the Axis
Powers, this act gave the Governor the power to work with the federal government and
other states on common defense. It appears that the disasters contemplated under this
act were man-made related to wars. The act empowered the Governor to appoint a State
Defense Council, cooperate with local civil defense councils and, if necessary, conduct law
enforcement activities and other activities related to national defense.
Following World War II, the civilian defense laws were amended several times. While Cold
War considerations appear to have been a key motivation in the modifications,
amendments also provided for responses to a broader range of disasters than those
associated with war. Chapter 312, Laws of 1952, amended the 1942 legislation by creating
a Civil Defense Council, empowered to approve civil defense plans for Mississippi and to
coordinate planning efforts with the federal government, surrounding states, and local
governments in the state. The definitional section of this act is also significant because
it includes within the definition of civil defense emergency, fire, flood or other cause, as
well as things associated with military actions.22 Further amendments in 1962 included a
provision in a policy section recognizing the increasing possibility of natural disasters
occurring that could affect the state.23
Following the adoption of the Federal Disaster Act of 1974,24 Mississippi adopted
legislation that specifically dealt with the receipt and disbursement of funds made
available from federal sources following natural disasters such as floods, tornados, and
hurricanes. Chapter 331, Laws of 1978, created a Disaster Emergency Funding Board that
was authorized to receive and disburse federal disaster funds.
Emergency Management Laws Since the 1980s
Beginning in 1980, Mississippi’s emergency management laws began to move away from
the theme of civil defense and began to address a broader range of threats posed by
natural, man-made, and technological disasters. These major scope changes did not occur
at once but were part of a continuing process that began in 1980 and lasted through the
next 25 years.
Emergencies Requiring Immediate Response

In the modern era, Mississippi’s emergency management law was no longer tied to the
state’s military preparedness laws dating back to the beginning of World War II. Chapter
22
See Section 3, Chapter 312, Laws of 1952.
23
See Section 1, Chapter 482, Laws of 1962.
24
PL 93-288, (1974).
8 PEER Report #647

491, Laws of 1980, known as the Mississippi Emergency Management Law, was noteworthy
for three significant changes to Mississippi’s handling of emergencies and disasters.
These changes were:
• the creation of the Mississippi Emergency Management Agency that is responsible
for managing and coordinating executive responses to emergencies and disasters;
• amendments to existing laws to reflect that emergencies could come in the form
of man-made emergencies, technological emergencies, or natural disasters; and,
• Amendments to MISS. CODE ANN. Section 33-13-11 (1972) that empowers the
Governor to take action in the event of emergencies to reflect that gubernatorial
powers extend to all such disasters. Earlier statutes empowering action by the
Governor tended to reflect only emergencies that were related to war or the threat
of invasion.25
Legal Definitions of a State of Emergency26
Chapter 420, Laws of 1983, makes clear that Mississippi’s emergency management law
must address two broad types of emergencies—the traditional civil defense emergencies
characterized by the existence of a declared war and other types of emergencies or
conditions of disaster or extreme peril to the safety of persons or property within the
state caused by air or water pollution, fire, flood, storm, epidemic, earthquake, hurricane,
resource shortages, or other natural or man-made conditions other than conditions
causing a “state of war emergency.” These definitions are included in MISS. CODE ANN.
Section 33-15-5 (1972).
Governor’s Authority to Seek Federal Disaster Assistance
In accordance with Legislation passed in 1984 to comply with the 1983 separation of
powers lawsuit,27 the Governor was given the authority previously placed in the hands of
the Commission on Budget and Accounting to apply for federal disaster assistance. The
1984 legislation also repealed the authority of the Commission on Budget and Accounting
to administer disaster aid directed to Mississippi from federal sources.
Definitional Changes and Statements of Public Policy28

During 1995, the Legislature enacted major legislation related to emergency management.
The most significant legislation since 1980, Chapter 333, Laws of 1995, achieved the
following by:
• providing definitions of “emergency management,” “emergency,” “man-made
emergency,” “natural emergency,” “technological emergency,” and “disaster;”
• defining the duties of the Mississippi Emergency Management Agency with
respect to comprehensive planning for disaster and post-disaster programs; and,
• adding a legislative statement of intent, MISS. CODE ANN. Section 33-15-2 (1972),
that outlines the need for comprehensive disaster planning, the need to coordinate
service delivery in the face of disaster, the broad range of disasters that can impact
the health and safety of the people of Mississippi, and the need to provide
25
Chapter 491, Laws of 1980.
26
27
28
PEER Report #647 9

assistance where the capacity of local governments may be exceeded by the
demands for assistance.
Temporary Housing29
In 2004 the Mississippi Legislature revised legislation in force and effect since 1978
regarding providing disaster assistance and temporary housing to persons in the wake of
a disaster. The Executive Director of MEMA was given the responsibility for the managing
and planning of the disbursement of such assistance.
Following many years of emergency powers expansion, a recent case decided by the
Mississippi Supreme Court30 perhaps best captures the purpose and goal of Mississippi’s
current emergency management laws:
…the Emergency Management Law as currently in force and effect gives
state agencies freedom to deploy their emergency-management
responsibilities rapidly and focus on reducing the vulnerability of the people
and property of this state…
29
30
Miss. Dep’t of Transp. v. Musgrove (Miss. 2020).
10 PEER Report #647

Were Mississippi’s Emergency Powers Laws
Adequate to Protect Mississippi Citizens from the
Threat of the COVID-19 Pandemic?
As stated on page 1, the worldwide COVID-19 pandemic required state and local officials
to utilize Mississippi’s emergency powers laws to enact orders for the health and
protection of the state’s citizens. This process required that the Governor and local
governing authorities carefully consider the options and strategies available to them on
the occasion of a pandemic.
Criteria for Evaluating the Adequacy of a State’s Emergency Powers

Laws
Model state health emergency powers laws promulgated by two groups define the
criteria or attributes that states should consider when enacting such laws, but the
groups’ model laws have been met with considerable criticism.
Finding a broadly accepted criterion for evaluating the adequacy and comprehensiveness
of a state’s emergency powers laws is difficult. Some public health experts have
championed comprehensive root and branch reform of state public health emergency
laws, citing as reasons the age of existing laws that were adopted in the early twentieth
century and a concern over these laws’ enforceability in view of a constitutional landscape
that has changed since many of these statutes were enacted, particularly those regarding
civil liberties.
The most noteworthy attempt to change state emergency laws since the civil defense era
occurred in October 2001 with the development of the Model State Emergency Health
Powers Act (MSEHPA) by the Center for Law and Public Health at Georgetown and Johns
Hopkins Universities. The MSEHPA was designed to provide states with a broad array of
powers to respond to emergencies, with primary emphasis on preparedness, surveillance,
management of property, protection of persons, and communication. In September 2003,
the Turning Point Public Health Statute Modernization Collaborative—part of a larger
Robert Wood Johnson Foundation effort to strengthen public health infrastructures—
developed the Turning Point Model State Public Health Act (Turning Point Act). The
Turning Point Act proposed a template of key public health powers for state, tribal, and
local governments with primary emphasis on surveillance, reporting, mandatory testing
and evaluation, compulsory treatment, quarantine and isolation, and security safeguards.
Criticism of the two acts came quickly from groups as varied as the American Civil
Liberties Union (ACLU) and the American Legislative Exchange Council (ALEC)—two
groups which traditionally have been at opposite ends of the political continuum. Both
groups found cause for concern due to the acts’ very broad and imprecise definition of a
public health emergency, and believed that this breadth could allow minor health matters,
such as an annual influenza outbreak, to rise to the level of an emergency triggering broad
powers over people and their property. In general, some experts believed that the
compulsive aspects of the acts’ emergency powers were not workable in the modern age.
(See Appendix C, page 48, for a more detailed discussion of the model acts and criticism
of the acts.)
PEER Report #647 11

Adequacy of Mississippi’s Current Emergency Powers Laws
While Mississippi has not adopted the Model State Emergency Health Powers Act,
Mississippi’s current emergency powers laws address most subjects contained in
the model act through provisions in the Mississippi Emergency Management Law
(Title 33, Chapter 15, MISSISSIPPI CODE of 1972) and other specific longstanding
public health provisions of the MISSISSIPPI CODE.
Regardless of the concerns raised by critics, the Model State Emergency Health Powers
Act has been successful in being enacted in the states. The concerns most critics have
raised have tended not to be with the subject areas that the model acts address but with
how the model acts deal specifically with each area. By 2011, 40 states had either
considered or adopted the Act in its entirety or in part, but Mississippi has not yet adopted
the Act.
While Mississippi’s laws dealing with the problems posed by health threats have been
adopted in a piecemeal manner over time, the following subject-area criteria espoused by
the MSEHPA can be used to evaluate Mississippi’s current emergency powers laws:
• statement of policy;
• preparedness and planning;
• surveillance and detection;
• states of emergency/declarations;
• special powers in an emergency;
• protection of persons; and,
• communication and dissemination of information.
Statement of Policy
MISS. CODE ANN. Section 33-15-3 (1972) outlines the general statement of policy for
Mississippi’s emergency powers laws. Section 33-15-3 declares:
(a) Because of the existing and increasing possibility of the occurrence of
disasters or emergencies of unprecedented size and destructiveness
resulting from enemy attack, sabotage or other hostile action, and from
natural, man-made or technological disasters, and in order to insure that
preparations of this state will be adequate to deal with, reduce vulnerability
to, and recover from such disasters or emergencies, and generally to provide
for the common defense and to protect the public peace, health and safety,
and to preserve the lives and property of the people of this state, it is hereby
found and declared necessary: (1) To create a state emergency management
agency, and to authorize the creation of local organizations for emergency
management in the municipalities and counties of the state, and to
authorize cooperation with the federal government and the governments of
other states; (2) to confer upon the Governor, the agency and upon the
executive heads or governing bodies of the municipalities and counties of
the state the emergency powers provided herein; (3) to provide for the
rendering of mutual aid among the municipalities and counties of the state,
and with other states, and with the federal government with respect to the
carrying out of emergency management functions and responsibilities; (4)
to authorize the establishment of such organizations and the development
and employment of such measures as are necessary and appropriate to
carry out the provisions of this article; and (5) to provide the means to assist
12 PEER Report #647

in the prevention or mitigation of emergencies which may be caused or
aggravated by inadequate planning for, and regulation of, public and
private facilities and land use.
(b) It is further declared to be the purpose of this article and the policy of
the state that all emergency management functions of this state be
coordinated, to the maximum extent, with the comparable functions of the
federal government, including its various departments and agencies, of
other states and localities, and of private agencies of every type, to the end
that the most effective preparation and use may be made of the nation’s
manpower, resources, and facilities for dealing with any disaster or
emergency, or both, that may occur as enumerated in this section.
Thus, the Legislature has declared that Mississippi’s emergency management efforts
should be wide-ranging and coordinated to address a broad range of disasters and
emergencies. MISS. CODE ANN. Sections 33-15-5 (g) through (k) (1972) further define the
various types of emergencies that must be addressed by state and local authorities, as
enumerated below:
(f) “State of emergency” means the duly proclaimed existence of conditions
of disaster or extreme peril to the safety of persons or property within the
state caused by air or water pollution, fire, flood, storm, epidemic,
earthquake, hurricane, resource shortages, or other natural or man-made
conditions other than conditions causing a “state of war emergency,” which
conditions by reasons of their magnitude are or are likely to be beyond the
control of the services, personnel, equipment and facilities of any single
county and/or municipality and requires combined forces of the state to
combat. [emphasis added]
(g) “Local emergency” means the duly proclaimed existence of conditions of
disaster or extreme peril to the safety of persons and property within the
territorial limits of a county and/or municipality caused by such conditions
as air or water pollution, fire, flood, storm, epidemic, earthquake, hurricane,
resource shortages or other natural or man-made conditions, which
conditions are or are likely to be beyond the control of the services,
personnel, equipment and facilities of the political subdivision and require
the combined forces of other subdivisions or of the state to combat.
(h) “Emergency” means any occurrence, or threat thereof, whether natural,
technological, or man-made, in war or in peace, which results or may result
in substantial injury or harm to the population or substantial damage to or
loss of property.
(i) “Man-made emergency” means an emergency caused by an action
against persons or society, including, but not limited to, emergency attack,
sabotage, terrorism, civil unrest or other action impairing the orderly
administration of government.
(j) “Natural emergency” means an emergency caused by a natural event,
including, but not limited to, a hurricane, a storm, a flood, severe wave
action, a drought or an earthquake.
(k) “Technological emergency” means an emergency caused by a

technological failure or accident, including, but not limited to, an explosion,
transportation accident, radiological accident, or chemical or other
hazardous material incident.
PEER Report #647 13

Preparedness and Planning
Planning and preparation are critical to emergency management. This idea is captured in
the general policy statement that prefaces several sections on emergency management.
MISS. CODE ANN. Section 33-15-3 (1972) makes clear Mississippi’s policy on ensuring that
preparations for emergencies will be adequate to deal with and reduce vulnerability to
disasters and emergencies. Additionally, MISS. CODE ANN. Section 33-15-11 (b) (1972)
provides ample planning authority to the Governor and emergency management entities.
Specifically, this section provides:
(b) In performing his duties under this article, the Governor is further
authorized and empowered:
…
(2) To work with the Mississippi Emergency Management Agency in
preparing a comprehensive plan and program for the emergency
management of this state, such plan and program to be integrated into and
coordinated with the emergency management plans of the federal
government and of other states to the fullest possible extent, and to
coordinate the preparation of plans and programs for emergency
management by the political subdivisions of this state, such local plans to be
integrated into and coordinated with the emergency management plan and
program of this state to the fullest possible extent.
Regarding the development of coordinated and comprehensive plans, MISS. CODE ANN.
Section 33-15-14 (1972) directs the Mississippi Emergency Management Agency to be:
(1) …. responsible for maintaining a comprehensive statewide program
of emergency management. The agency is responsible for coordination
with efforts of the federal government with other departments and
agencies of state government, with county and municipal governments and
school boards and with private agencies that have a role in emergency
management.
Surveillance and Detection
Specific CODE provisions dealing with the Mississippi State Department of Health (MSDH)
provide authority regarding the detection of diseases. While not part of the state’s
emergency management laws, the MSDH and its resources are directly utilized in all forms
of emergencies and are directed by the Governor’s orders to work on the planning and
management of emergency matters. Regarding the surveillance and detection of diseases,
MISS. CODE ANN. Section 43-23-1 (1) (1972) provides broad authority for the MSDH to
adopt rules and regulations requiring the reporting of communicable diseases to the
MSDH. This subsection provides:
(1) The State Board of Health shall adopt rules and regulations (a) defining
and classifying communicable diseases and other diseases that are a danger
to health based upon the characteristics of the disease; and (b) establishing
reporting, monitoring and preventive procedures for those diseases.
Subsections (4) and (5) of the same section describe reporting responsibilities for
physicians, hospitals, and other health care providers. These provisions state:
(4) Every practicing or licensed physician, or person in charge of a hospital,
health-care facility, insurance company which causes to be performed blood
tests for underwriting purposes or laboratory, shall report immediately to
the Executive Officer of the State Board of Health or to other authorities as
required by the State Board of Health every case of such diseases as shall be
14 PEER Report #647

required to be reported by the State Board of Health. Such reporting shall
be according to procedures, and shall include such information about the
case, as shall be required by the State Board of Health. Insurance companies
having such blood test results shall report immediately to the Executive
Officer of the State Board of Health or to other authorities as required by
the State Board of Health every case of such diseases as shall be required to
be reported by the State Board of Health. The insurance company shall
notify the individual on whom the blood test was performed in writing by
certified mail of an adverse underwriting decision based upon the results of
such individual’s blood test but shall not disclose the specific results of such
blood tests to the individual. The insurance company shall also inform the
individual on whom the blood test was performed that the results of the
blood test will be sent to the physician designated by the individual at the
time of application and that such physician should be contacted for
information regarding the blood test results. If a physician was not
designated at the time of application, the insurance company shall request
that the individual name a physician to whom a copy of the blood test can
be sent.
(5) Any practicing or licensed physician, or person in charge of a hospital
or health-care facility, who knows that a patient has a medical condition
specified by the Department of Health as requiring special precautions by
health-care providers, shall report this fact and the need for appropriate
precautions to any other institution or provider of health-care services to
whom such patient is transferred or referred, according to regulations
established by the State Board of Health.
Finally, subsection 7 of this section establishes a criminal penalty for non-compliance.
Specifically, this provision provides:
(7) Any person other than a practicing or licensed physician, or person in

charge of a hospital or health-care facility, willfully failing to make the
reports required under this section shall be guilty of a misdemeanor and,
upon conviction, shall be punished by a fine of not more than Five Hundred
Dollars ($500.00) or by confinement in the county jail for not more than
thirty (30) days, or both.31
States of Emergency/Declarations
Mississippi’s provision on states of emergency is sufficiently broad to empower the
Governor to declare a state of emergency in the face of a natural disaster such as an
epidemic or pandemic. MISS. CODE ANN. Section 33-15-11 (b) (17) (1972) states:
(17) To proclaim a state of emergency in an area affected or likely to be
affected thereby when he finds that the conditions described in Section 33-
15-5 (g) exist, or when he is requested to do so by the mayor of a municipality
or by the president of the board of supervisors of a county, or when he finds
that a local authority is unable to cope with the emergency. Such
proclamation shall be in writing and shall take effect immediately upon its
execution by the Governor. As soon thereafter as possible, such
proclamation shall be filed with the Secretary of State and be given
widespread notice and publicity. The Governor, upon advice of the director,
shall review the need for continuing the state of emergency at least every
Mississippi State Department of Health regulations were amended on March 13, 2020, to include
31
COVID-19 as a disease whose detection must be reported to the Mississippi State Department of
Health.
PEER Report #647 15

thirty (30) days until the emergency is terminated and shall proclaim a
reduction of area or the termination of the state of emergency at the earliest
possible date that conditions warrant.
In support of these declarations, the same section contains a subsection (c) which
provides:
(c) In addition to the powers conferred upon the Governor in this section,
the Legislature hereby expressly delegates to the Governor the following
powers and duties in the event of an impending enemy attack, an enemy
attack, or a man-made, technological or natural disaster where such
disaster is beyond local control:
(1) To suspend the provisions of any regulatory statute prescribing the
procedures for conduct of state business, or the orders, rules or regulations
of any state agency, if strict compliance with the provisions of any statute,
order, rule or regulation would in any way prevent, hinder or delay
necessary action in coping with a disaster or emergency.
(2) To transfer the direction, personnel or functions of state agencies,
boards, commissions or units thereof for the purpose of performing or
facilitating disaster or emergency services.
(3) To commandeer or utilize any private property if necessary, to cope with
a disaster or emergency, provided that such private property so
commandeered or utilized shall be paid for under terms and conditions
agreed upon by the participating parties. The owner of said property shall
immediately be given a receipt for the said private property and said receipt
shall serve as a valid claim against the Treasury of the State of Mississippi
for the agreed upon market value of said property.
(4) To perform and exercise such other functions, powers and duties as may
be necessary to promote and secure the safety and protection of the civilian
population in coping with a disaster or emergency.
Special Powers in an Emergency
The Emergency Management Law provides the Governor with considerable power over
property within Mississippi to utilize, if necessary, in order to meet the demands of an
emergency. In general, MISS. CODE ANN. Section 33-15-11 (b) (3) provides:
(3) In accordance with such plan and program for emergency management
of this state, to ascertain the requirements of the state or the political
subdivisions thereof for food or clothing or other necessities of life in the
event of attack or natural or man-made or technological disasters and to
plan for and procure supplies, medicines, materials and equipment, and to
use and employ from time to time any of the property, services and
resources within the state, for the purposes set forth in this article; to make
surveys of the industries, resources and facilities within the state as are
necessary to carry out the purposes of this article; to institute training
programs and public information programs, and to take all other
preparatory steps, including the partial or full mobilization of emergency
management organizations in advance of actual disaster, to insure the
furnishing of adequately trained and equipped forces of emergency
management personnel in time of need.
Stronger authority exists in the same section. MISS. CODE ANN. Section 33-15-11 (c) (3)
(1972) empowers the Governor:
16 PEER Report #647

(3) To commandeer or utilize any private property if necessary, to cope with
a disaster or emergency, provided that such private property so
commandeered or utilized shall be paid for under terms and conditions
agreed upon by the participating parties. The owner of said property shall
immediately be given a receipt for the said private property and said receipt
shall serve as a valid claim against the Treasury of the State of Mississippi
for the agreed upon market value of said property.
Protection of Persons
This broad authority relates to the powers of state agencies to address the following
categories.
Imposition of Restrictions on a Person’s Behavior
Broad authority exists under MISS. CODE ANN. Section 33-15-11 (b) and (c) (1972) under
which Governor Reeves ordered such actions such as mask requirements, shelter-at-home
requirements, and social distancing. While these have not been challenged in Mississippi
courts, similar orders of governors have been challenged, notably in Louisiana and
Virginia.32 In such cases, the courts have noted that considerable scientific evidence exists
to support the reasonableness of such orders when challenged on the grounds of an
impairment of individual rights.
Quarantines of Infected Persons
Provisions in law since the early 1900s empower the Mississippi State Department of
Health to impose quarantines of persons. MISS. CODE ANN. Section 41-2-15 (4) (c) (1972)
provides:
(4) The State Board of Health shall have authority:
…
(c) To direct and control sanitary and quarantine measures for dealing with
all diseases within the state possible to suppress same and prevent their
spread.
Specifically, MISS. CODE ANN. Section 41-23-5 (1972) states:
The State Department of Health shall have the authority to investigate and
control the causes of epidemic, infectious and other disease affecting the
public health, including the authority to establish, maintain and enforce
isolation and quarantine, and in pursuance thereof, to exercise such
physical control over property and individuals as the department may find
necessary for the protection of the public health. The State Department of
Health is further authorized and empowered to require the temporary
detainment of individuals for disease control purposes based upon violation
of any order of the State Health Officer. For the purpose of enforcing such
orders of the State Health Officer, persons employed by the department as
investigators shall have general arrest powers. All law enforcement officers
are authorized and directed to assist in the enforcement of such orders of
the State Health Officer.
MISS. CODE ANN. Section 41-23-2 (1972) gives penalties for persons who fail to abide by
a quarantine order. Specifically, the section says:
32
See 910 E Main LLC v. Edwards, (W.D. La. August 21, 2020); 4 Aces Enters. v. Edwards, (E.D. La.
August 17, 2020); and Dillon v. Northam, (Va. Cir. 2020).
PEER Report #647 17

Any person who shall knowingly and willfully violate the lawful order of the
county, district or state health officer where that person is afflicted with a
life-threatening communicable disease or the causative agent thereof shall
be guilty of a felony and, upon conviction, shall be punished by a fine not
exceeding Five Thousand Dollars ($5,000.00) or by imprisonment in the
penitentiary for not more than five (5) years, or by both.33
MSDH has considerable authority to direct quarantines in its own name, or when working
under the direction of the Governor in the case of an emergency.34
Protection of Confidential Information
While state law does not address the issue of confidentiality of the disease reports
physicians make to the MSDH, agency regulations make such reports confidential, as
stated in Mississippi State Department of Health Rule 1.1.1 (1).
Communication and Dissemination of Information

MISS. CODE ANN. Section 33-15-11 (b) (3) (1972) empowers the use and implementation
of public information efforts regarding emergency preparation and response.
Historically, the Governor, the Mississippi Emergency Management Agency, and the
Mississippi State Department of Health were active in providing information to
Mississippi’s citizens in the cases of weather emergencies as well as the current COVID-
19 pandemic.
While it should be apparent that Mississippi’s emergency management laws, and long-
standing public health laws address the subject of providing protection to persons from
a wide range of disasters, the laws were created to address the types of disasters and
emergencies known to Mississippi legislators and state executives based on experience.
Because of the uniqueness of the COVID-19 pandemic, state executives have had to rely
on very general provisions of law to address matters such as social distancing, business
closures, and face coverings, with the benefit of mandatory legislative oversight and
review.
33
See Carter v. State, 803 So.2d 1191, (Miss. App. 1999). A case upholding a five-year prison
sentence for violating an HIV quarantine order.
34
Up to this point, the Mississippi State Department of Health has offered directives on isolation
and self-quarantine for individuals who have tested positive for COVID-19 and has issued
isolation and quarantine guidelines for students and staff at state universities.
18 PEER Report #647

Were the Actions Taken by State and Local
Government Officials During the COVID-19
Pandemic Appropriate?
Mississippi elected officials, on both the state and local levels, were challenged with
managing an unprecedented public health crisis with the advent of the COVID-19
pandemic in March 2020. These officials had to rely on existing state and local emergency
powers statutes to address the crisis.
State Government Officials’ Responses to the COVID-19 Pandemic

The Governor’s executive orders issued in response to the COVID-19 pandemic were
generally directed toward the protection of Mississippi citizens. However, current state
emergency management laws on which the orders were based lacked provisions for the
Legislature to have oversight of policy for long-term emergencies, such as the COVID-19
pandemic. Additionally, some orders appear to exceed the scope of the Governor’s
emergency powers conferred by law.
Governor Tate Reeves, as the state’s chief executive officer, played a major role in
Mississippi’s response to COVID-19. Current emergency powers statutes provided the
Governor with a potent arsenal with which to protect the state’s citizens.
Governor Reeves’s COVID-19 Executive Orders from March Through

November 2020
MISS. CODE ANN. Section 35-15-11 (1972) enumerates the emergency management
powers of the Governor. Specifically, MISS. CODE ANN. Section 35-15-11 (b) (17) provides
the Governor with the authority to proclaim a state of emergency when he finds the
existence of conditions of disaster or extreme peril to the safety of persons and property
within a county or municipality.
On March 14, 2020, due to the worldwide COVID-19 pandemic, Governor Tate Reeves
issued a proclamation declaring a state of emergency under the authority of MISS. CODE
ANN. Section 33-15-11 (b) (17) (1972). From March 16, 2020, through November 17, 2020,
Governor Reeves issued 65 orders addressing the COVID-19 pandemic. These orders
involved emergency powers provided for in MISS. CODE ANN. Section 33-15-11 and
accomplished the following:
• established planning bodies responsible for recommending policy related to our
response to the pandemic;
• directed specific actions to reduce the spread of COVID-19, including social
distancing requirements, closures of business and governmental offices except for
essential services as clearly defined by orders, closure of schools, and
requirements that persons residing in the state wear protective face coverings
under certain conditions;
• preempted local ordinances and orders that conflicted with emergency directives;
• authorized local orders that were not in conflict with the directives of the
Governor;
• delegated certain powers to the Mississippi State Department of Health and the
Mississippi Emergency Management Agency;
PEER Report #647 19

• suspended the operations of state laws under the authority of MISS. CODE ANN.
Section 33-15-17 (c) (1972) when the provisions of any regulatory statute
prescribing the procedures for the operation of state business, or the orders, rules,
or regulations of any state agency, if the strict compliance with the provisions of
any statute, order, rule or regulation would in any way prevent, hinder, or delay
necessary action in coping with a disaster or emergency; and,
• authorized the use of administrative leave for public employees deemed not
essential.
The orders have generally been directed toward achieving protection for the residents of
Mississippi in the face of a dangerous pandemic where considerable uncertainty existed
regarding the best action necessary to ensure the safety of our residents.
Mississippi’s emergency management law provides for unlimited executive authority

to renew an emergency declaration without legislative oversight. This is outside the
mainstream of present-day emergency powers legislation.
As presented on pages 12 through 18, Mississippi’s current emergency management law

provides the Governor with substantial authority to manage emergencies, primarily
through the issuance of orders compelling compliance of public health directives by the
state’s citizens. The only limitations on the Governor’s emergency powers authority is
found in MISS. CODE ANN. Section 33-15-17 (b) (17) (1972), which provides:
…The Governor, upon advice of the director, shall review the need for
continuing the state of emergency at least every thirty (30) days until the
emergency is terminated and shall proclaim a reduction of area or the
termination of the state of emergency at the earliest possible date that
conditions warrant.
Thus, the Governor and the director—i.e., the Executive Director of the Mississippi
Emergency Management Agency—are the sole judges as to when a state of emergency
shall be considered concluded.
Doubtless, considerable authority needs to be vested in the Governor to address the
exigencies of an emergency, but such authority without checks is contrary to the current
trend in emergency legislation within the states. According to the National Conference of
State Legislatures (NCSL) and the State Legislative Leaders Foundation (SLLF), most states
allow their legislative bodies some degree of formal oversight over the emergency
declaration process. In summary, regarding non-war emergencies, NCSL and SLLF report:
• Mississippi and Tennessee are two of 18 states in which the legislative branch
cannot terminate an emergency declared by the Governor.35
• In Louisiana, either house of the Legislature may terminate an emergency.
• In Arkansas, an emergency may be terminated by concurrent resolution.
• In Alabama, the Legislature may not terminate an emergency but may extend one.
• In Georgia, the Governor must call the Legislature into special session after
declaring a public health emergency to consider either concurring on or
terminating the emergency.
35
Some states have multiple emergency laws. South Carolina is an example. When one law gives
the Governor complete discretion of an emergency, PEER counts that state as having gubernatorial
control.
20 PEER Report #647

The precise terms of the Legislature’s involvement in an emergency situation vary from
state to state. In Alaska, Kansas, Montana, Utah, Washington, and Wisconsin, an
emergency declared by the Governor must end at a statutorily prescribed time. The
Legislature then has the authority to renew the emergency should it choose. In Kansas
and Utah, the Legislature may also terminate an emergency declared by a Governor. In
25 other states,36 the Legislature may terminate an emergency at any time.
These states have found a way to strike a balance between the need for a Governor to act
quickly to address an emergency and for the Legislature, the lawmaking body of the state,
to have some oversight to ensure that the actions taken in an emergency are in substance,
scope, and duration protective of the health and welfare of the residents. In states where
a declaration is of limited duration and the Legislature must be called into special session
to determine if the emergency will continue, the legislative branch is given an opportunity
to craft a revised set of mandates, processes, and/or procedures to address a continuing
emergency.
The lack of a provision in Mississippi’s emergency powers laws mandating legislative

oversight of the Governor’s emergency proclamations and orders may also give rise to
unintended consequences threatening the legality of broadly framed emergency orders
dealing with the pandemic.
Broad, unchecked powers of the Governor may constitute an unconstitutional

delegation of legislative authority.
Generally, lawmaking power is restricted to the legislative branch of government.

Mississippi courts have recognized that in complex, modern legal environments, some
authority needs to be afforded to the executive branch to make rules and standards.
Constitutionally, this may be done when the Legislature establishes meaningful standards
to limit the executive branch’s authority.37
In a recent case from the Michigan Supreme Court challenging the constitutionality of
Michigan’s Emergency Powers of the Governor Act, the majority concluded that the act
was an unconstitutional delegation of legislative power because it covered extremely
broad subject matter, provided no meaningful limits on the duration of an emergency,
and provided no meaningful constraints on the powers to be exercised by the Governor.
The only limits to the Governor’s powers were that exercises of emergency powers must
be reasonable and necessary to accomplishing the ends of protecting the life and property
of the state’s residents.38
Such objections could be leveled against Mississippi’s emergency management law as it
provides similar broad authority, places no effective limits on the duration of the
Governor’s authority to issue orders in an emergency, and tends to use imprecise
language of limitations on the Governor’s powers. For example, orders setting out
requirements for the Governor Reeves’s COVID-19 directives, commonly referred to as
36
Arizona, Arkansas, California, Colorado, Connecticut, Florida, Idaho, Indiana, Iowa, Louisiana,
Maine, Maryland, Minnesota Missouri, Nebraska, Nevada, New Hampshire, New York, North
Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, and West Virginia.
37
In Howell v. State, 300 So.2d 774, (Miss. 1974) and State v. Allstate Ins. Co., 231 Miss. 869, 97
So.2d 372, (Miss. 1957) stand for the proposition that in Mississippi "Legislative power or
functions may be delegated to an administrative agency only in the limited sense that the statute
must set forth the legislative decision and must prescribe adequate standards or rules for the
agency's guidance. It cannot be vested with an arbitrary and uncontrolled discretion."
38
In re Certified Questions from the United States District Court, Western District of Michigan
Southern Division Midwest Institute of Health PLLC v. Governor of Michigan et al, October 2, 2020.
PEER Report #647 21

Shelter in Place39 and Safer at Home,40 tended to cite as authority the same provisions of
the CODE. These were MISS. CODE ANN. Section 33-15-11 (b) (1); (b) (4); (b) (6); (c) (1); and
(c) (4) (1972), as well as MISS. CODE ANN. Section 33-15-31 (1972).
The cited paragraphs from MISS. CODE ANN. Section 33-15-11 state that:
b) In performing his duties under this article, the Governor is further
authorized and empowered:
(1) To make, amend and rescind the necessary orders, rules and regulations
to carry out the provisions of this article with due consideration of the plans
of the federal government, and to enter into disaster assistance grants and
agreements with the federal government under the terms as may be
required by federal law.
…
(4) To cooperate with the President and the heads of the Armed Forces, and
the Emergency Management Agency of the United States, and with the
officers and agencies of other states in matters pertaining to the emergency
management of the state and nation and the incidents thereof; and in
connection therewith, to take any measures which he may deem proper to
carry into effect any request of the President and the appropriate federal
officers and agencies, for any action looking to emergency management,
including the direction or control of (a) blackouts and practice blackouts, air
raid drills, mobilization of emergency management forces, and other tests
and exercises, (b) warnings and signals for drills or attacks and the
mechanical devices to be used in connection therewith, (c) the effective
screening or extinguishing of all lights and lighting devices and appliances,
(d) shutting off water mains, gas mains, electric power connections and the
suspension of all other utility services, (e) the conduct of civilians and the
movement and cessation of movement of pedestrians and vehicular traffic
during, prior and subsequent to drills or attack, (f) public meetings or
gatherings under emergency conditions, and (g) the evacuation and
reception of the civilian population.
…
(6) To employ such measures and give such directions to the state or local
boards of health as may be reasonably necessary for the purpose of securing
compliance with the provisions of this article or with the findings or
recommendations of such boards of health by reason of conditions arising
from enemy attack or the threat of enemy attack or natural, man-made or
technological disaster.
…
(c) In addition to the powers conferred upon the Governor in this section, the
Legislature hereby expressly delegates to the Governor the following powers
and duties in the event of an impending enemy attack, an enemy attack, or
a man-made, technological or natural disaster where such disaster is
beyond local control:
(1) To suspend the provisions of any regulatory statute prescribing the
procedures for conduct of state business, or the orders, rules or
regulations of any state agency, if strict compliance with the provisions
39
Executive Orders 1466 and 1473 (2020).
40
Executive Orders 1477, 1478, 1480, 1483, 1486, 1487, 1488, and 1491 (2020).
22 PEER Report #647

of any statute, order, rule or regulation would in any way prevent,
hinder or delay necessary action in coping with a disaster or emergency.
…
(4) To perform and exercise such other functions, powers and duties as may
be necessary to promote and secure the safety and protection of the civilian
population in coping with a disaster or emergency." See Section 33-15-11
(c) (4).
With the exception of paragraph (b) (4), these provisions make use of terms such as
“reasonable” and “necessary,” which are not accompanied by any legislative language of
setting standards or limits to the exercise of emergency powers. Paragraph (b) (4) is
apparently a provision from the era when civil defense was the principal purpose of
Mississippi’s emergency management statutes. While it specifically deals with restrictions
on the movement of civilians, the use of the terms such as “blackouts,” “air raid drills,”
“warnings,” and “civilians” connote a military purpose for this subsection. The subsection
would certainly be appropriate for use in instances where there is a threatened attack, but
there is cause for doubt as to whether or not the provision is adequate authority for
addressing a pandemic. MISS. CODE ANN. Section 33-15-31 (1972) confers enforcement
power and makes a violation of an emergency order a misdemeanor.
Safe Return41 and Safe Recovery42 directives tended to cite earlier executive orders as
authority, presumably relying on their statutory basis for authority.
PEER notes that this argument has been raised unsuccessfully in a case arising in
Pennsylvania. Appendix B, page 42, contains a discussion of all authority on this subject
including cases from several jurisdictions and other commentary on the issue of the
delegation of legislative powers.
The Governor’s use of the authority found in MISS. CODE ANN. Section 33-15-11 (c)
(1) (1972) to suspend certain laws may have exceeded his statutory authority.
MISS. CODE ANN. Section 33-15-11 (c) (1) authorizes the Governor to suspend the
operation of certain state laws and regulations under certain conditions. Unlike several
other provisions of Title 33, Chapter 15—i.e., the Mississippi Emergency Management
Law—Section 33-15-11 (c) (1) provides explicit restrictions on the Governor’s exercise of
suspension powers. Specifically, the Section states:
1) To suspend the provisions of any regulatory statute prescribing the

procedures for conduct of state business, or the orders, rules or regulations
of any state agency, if strict compliance with the provisions of any statute,
order, rule or regulation would in any way prevent, hinder, or delay
necessary action in coping with a disaster or emergency.
The term “regulatory statutes” as used in this section has been defined43 to include those
statutes that prescribe the method or manner in which certain actions may lawfully be
taken by public and private entities, officers, and employees. For example, the state’s
competitive bidding requirements of MISS. CODE ANN. Section 31-7-13 (1972) are
regulatory provisions that may be suspended pursuant to Section 33-15-11 (c) (1).
Most of Governor Reeves’s actions in the executive orders to suspend the operations of
state laws appear to fall within the scope of Section 33-15-11 (c) (1). For example, the
41
Executive Orders 1492, 1496, 1500, 1505, 1508, 1511, 1514, 1516, 1518, 1519, 1520, and 1522,
(Repealed, Executive Order 1525 [2020]).
42
Executive Orders 1525, 1527, 1528, 1530, and 1531 (2020).
43
See Attorney General’s Opinion to Stringer, November 4, 2005.
PEER Report #647 23

Governor’s executive orders suspended requirements regarding the processing of
unemployment claims by the Department of Employment Security; the requirement for
the training of county purchase, inventory, and receiving clerks; and the deadlines for
preparing local government budgets.
Provisions of two of Governor Reeves’s executive orders—Executive Order 1499 (June 26,
2020) and Executive Order 1504 (June 30, 2020) appear to exceed the Governor’s authority
granted in Section 33-15-11 (c) (1). Executive Order 1499 suspended the operation of
certain CODE sections mandating the appointment of members to 24 boards and
commissions. Based on a review of the Secretary of State’s Register of Commissions, this
order enables 47 persons whose terms have currently expired to continue to serve on
their respective boards and commissions. Under this executive order, an additional 22
appointees with expired terms will be able to continue to serve when their terms expire
in 2021. (See Exhibit 1, page 24, for a list of the boards and commissions affected by
Executive Order 1499.) In addition, Executive order 1504 suspended the operations of
MISS. CODE ANN. Section 77-2-7 (1) (1972) that required the Governor to appoint the
Director of the Public Utilities Staff by July 1, 2020. The order extended the deadline to
July 15, 2020.
Exhibit 1: Appointments Affected by Executive Order 1499

Terms Terms
Expired on Expired by
September September
Board or Commission 24, 2020 30, 2021
Animal Health, Board of 3 3

Business Finance Corporation, Mississippi 4 2
Charter School Authorizer Board 1 2
Commercial Mobile Radio Service Board 1 0
Educational Television Authority 2 0
Environmental Quality, Mississippi Commission on 1 0
Foresters, Board of Registration for 2 4
Forestry Commission 2 0
Gaming Commission 0 1
Information Technology Services Authority 1 1
Marine Resources, Commission on 3 0
Massage Therapy, Mississippi State Board of 2 2
Medical Licensure, State Board of 3 0
Mental Health, Board of 1 2
Oil and Gas Board, State 1 0
Personnel Board, Mississippi State 1 1
Prison Industries Corporation Board 7 1
Public Defender, Office of the State 1 0
Tort Claims Board, Mississippi 1 0
Transportation Commission Appeals Board 1 0
Veterans Affairs Board 3 1
Veterinary Medicine, State Board of 2 1
Wildlife, Fisheries, and Parks, Commission on 1 1
Women, Mississippi Commission on the Status of 3 0
Total 47 22
SOURCE: PEER staff analysis of the Mississippi Secretary of State’s summary list of boards and commissions.
24 PEER Report #647

It would appear that neither of these relate to the manner in which agencies conduct
business. Further, in the case of Executive Order 1499, the order actually impairs the
Legislature’s oversight of many agencies of state government by delaying the
appointment and Senate confirmation process to a date that may be well past the
conclusion of the current emergency. Legislative oversight again could have addressed
this matter through an enactment either embracing the delays set out in these orders or
repudiating them. In either case, the issue of permissible scope would have been
addressed.
Local Government Officials’ Responses to the COVID-19 Pandemic

Executive orders issued by the mayors of the City of Jackson, the City of Holly Springs,
and the City of Greenville to address the COVID-19 pandemic appeared to abridge the
fundamental freedoms protected by the U.S. Constitution and the Mississippi
Constitution.
Local government officials have statutory powers to issue emergency orders to address
health emergencies, such as the COVID-19 pandemic. MISS. CODE ANN. Section 33-15-17
(d) (1972) provides the following authority to local officials:
(d) A local emergency as defined in Section 33-15-5 may be proclaimed by
the mayor or governing body of a municipality, or the president of the board
of supervisors of a county or the governing body of a county. In the event a
local emergency is proclaimed by the mayor of a municipality or the
president of the board of supervisors of a county, the governing body of
such municipality or the governing body of such county shall review and
approve or disapprove the need for continuing the local emergency at its
first regular meeting following such proclamation or at a special meeting
legally called for such review. Thereafter, the governing body of such
municipality or the governing body of such county shall review the need for
continuing the local emergency at least every thirty (30) days until such local
emergency is terminated, and shall proclaim the termination of such local
emergency at the earliest possible date that conditions warrant. During a
local emergency, the governing body of a political subdivision may
promulgate orders and regulations necessary to provide for the protection
of life and property, including orders or regulations imposing a curfew
within designated boundaries where necessary to preserve the public order
and safety. Such orders and regulations and amendments and rescissions
thereof shall be in writing and shall be given widespread notice and
publicity. The authorization granted by this section to impose a curfew shall
not be construed as restricting in any manner the existing authority to
impose a curfew pursuant to police power for any other lawful purpose.
Two other provisions grant certain emergency powers to municipalities. MISS CODE ANN.
Section 21-19-3 (1972) provides:
The governing authorities of municipalities shall have the power to make

regulations to prevent the introduction and spread of contagious or
infectious diseases; to make quarantine laws for that purpose, and to
enforce the same within five miles of the corporate limits; and to establish
pesthouses outside the corporate limits, and to provide for the support and
government of the same.
Similarly, MISS. CODE ANN. Section 45-17-1 et seq. (1972) empowers the chief executive
officer of a municipality to issue emergency proclamations and declare the hours and
PEER Report #647 25

terms of curfews. Additionally, MISS. CODE ANN. Section 45-17-7 (1972) empowers the
chief executive officer to:
• order the closing of all retail liquor stores;
• order the discontinuance of the sale of intoxicating liquor and/or beer;
• order the discontinuance of the manufacture, transfer, use, possession, or

transportation of a Molotov cocktail or any other device, instrument, or object
designed to explode or produce uncontained combustion;
• order the discontinuance of selling, distributing, dispensing, or giving away of any

firearms or ammunition of any form whatsoever; and,
• issue such other orders as are necessary for the protection of life and property.
Local Government Officials’ COVID-19 Executive Orders
According to the Mississippi Municipal League, several Mississippi municipalities issued

emergency orders to address the COVID-19 pandemic. Some were orders that were
narrow in scope, such as the order issued by the City of Ruleville limiting gatherings of
more than ten persons.44 Others, such as the one issued by the City of Hattiesburg,
covered a broader range of subjects such as limits on non-essential gatherings to ten or
fewer persons, the closure of certain businesses, and other business operation
conditions—such as requiring restaurant take-out service only.45
While the provisions of law cited on page 25 empower localities to address emergency
situations, such authority has limits. For example, the orders may not conflict with orders
issued by the Governor. In addition, as with any governmental action, the orders may not
violate any constitutionally protected rights. While courts are applying a highly
deferential standard of review for emergency orders, at least three COVID-19-related
municipal executive orders raised constitutional issues.
City of Jackson’s Mayor’s Executive Order to Prohibit Open Carry of Handguns
On April 25, 2020, the Mayor of Jackson issued an executive order that temporarily
suspended the right for an individual to carry an unconcealed loaded or unloaded pistol
or revolver on his/her person. The order also suspended the carrying of firearms in a
purse, satchel, handbag, or briefcase that is wholly or partially concealed. Following
guidance from the Mississippi Attorney General that the municipality lacked the authority
under Mississippi law to suspend a statutory or constitutional right, a lawsuit was filed
against the City of Jackson by a member of the Mississippi Legislature challenging the
order as an abridgement of rights protected by both the United States Constitution and
the Mississippi Constitution.
The Jackson City Council refused to adopt the prohibition as an ordinance and the order
expired on April 30, 2020. Nonetheless, the plaintiff continued the lawsuit and on June
12, 2020, the parties entered into a consent decree under which the City agreed not to
attempt to limit the right to open carry again.46
44
City of Ruleville, issued on March 20, 2020.
45
City of Hattiesburg Executive Orders 2020-2 (March 17, 2020) and 2020-3 (March 21, 2020).
46
Criswell v. City of Jackson (2020).
26 PEER Report #647

Cities of Holly Springs and Greenville’s Executive Orders to Limit First
Amendment Freedoms
Two cases from the cities of Holly Springs and Greenville dealt with local emergency
orders that singled out religious worship for specific restriction.
In a lawsuit styled First Pentecostal Church of Holly Springs v. City of Holly Springs (ND,
Miss. 2020), the church challenged the order of Holly Springs twice during the early
months of the COVID-19 pandemic. A March 22, 2020, stay-at-home order of the City
placed churches in a category of non-essential functions along with businesses such as
gyms, barber shops, and dance studios. For such non-essential activities, the order
imposed a blanket prohibition against gatherings. On April 23, 2020, the church sought
relief in federal court challenging the ban under both state and federal grounds including
the First Amendment to the U.S. Constitution. An order of the federal court dated April
24, 2020, denied the plaintiff a temporary restraining order, but noted that the City agreed
not to enforce the order against drive-in services and would amend its order accordingly.
Further activity in this case followed in which some confusion arose regarding the
Governor’s guidance on worship procedures, the City’s revised standards involving
worship services, and whether or not the guidance pre-empted the City’s orders. After
the City of Holly Springs agreed to follow the guidance from the Governor’s office on safe
worship practice, the United States Court of Appeals for the Fifth Circuit ruled that the
City’s orders on worship would be enjoined pending future consideration. Specifically,
the Court stated:
We do this upon the assurances by the Church that it will "satisfy[y] the
requirements entitling similarly situated businesses and operations to
reopen." In this vein, we refer the Church to the Governor's new "Safe
Worship Guidelines for In-Person Worship Services," which appear similarly
rigorous to the City's requirements for reopening businesses but are tailored
to church operations. These guidelines, if implemented in the spirit of the
City's orders, may help the Church abide by its safety pledge during this
intervening period while the district court considers the injunction request
and while the City continues the ongoing process of evaluating and revising
its orders related to COVID-19.47
In a lawsuit styled Temple Baptist Church v. City of Greenville (ND, Miss, 2020), the church
challenged an order of the city council regarding worship. On April 7, 2020, the City
adopted an order that banned drive-in and in-person worship, and commenced
enforcement of the order on April 8, 2020. Enforcement consisted of having police appear
at the drive-in service of Temple Baptist Church and issue citations to persons in
attendance. The church challenged the constitutionality of the worship bans and filed
suit on April 10, 2020, seeking injunctive relief against the enforcement of the ordinance.
The church also sought a temporary restraining order against further enforcement on
April 11, 2020.
The suit gained considerable national attention and on April 14, 2020, the U.S.
Department of Justice filed a Statement of Interest on behalf of the plaintiff, setting out
arguments against orders that impair the free exercise of religion. The statement sets out
the current understanding that facially neutral prohibitions that apply to gatherings other
than religious services that are enforced uniformly may pass constitutional muster under
less rigorous standards of review, but those which single out religious practices will be
held to the highest standard—the compelling interest test. On the following day, the
Mayor of Greenville issued a revised executive order permitting drive-in services so long
47
First Pentecostal Church of Holly Springs v. City of Holly Springs, (5th Cir. 2020).
PEER Report #647 27

as the vehicle windows remained closed. The plaintiffs moved to dismiss their petition
for a temporary restraining order on April 21, 2020.48
48
Temple Baptist Church v. City of Greenville (ND, Miss 2020, Case No.4:20-cv-64-DMB-JMV).
28 PEER Report #647

Are There Statutory Changes to Mississippi’s
Emergency Powers Statutes that the Legislature
Should Consider?
The COVID-19 pandemic has been a unique experience in our nation and Mississippi’s
recent history. Mississippi and the nation have not faced such a challenge from a disease
since tuberculosis and polio in the 1940s and 1950s. Mississippi’s emergency
management laws are well tailored to address problems associated with floods, storms,
or even diseases such as influenza, about which the public knows a considerable amount.
The particular problem with COVID-19 is that many of the actions required to protect the
public were not contemplated by the persons who participated in the incremental
development of Mississippi’s emergency management laws. This explains the reliance on
general provisions in Mississippi’s emergency management laws cited in the numerous
executive orders issued by Governor Reeves since March 2020. Given the severity and
complexity of the COVID-19 pandemic and without statutory specificity to address such
a pandemic, it would appear prudent that the Legislature should have a more active role
in addressing a pandemic emergency through public policy.
Some states’ legislatures exert their influence over emergency policy making by being able
to adopt joint resolutions ending an emergency. In a recent publication of the National
Conference of State Legislatures, that organization noted that 24 state legislatures have
such power, with an additional one, Louisiana, vesting that power in each house of its
Legislature.49 This authority may give a Legislature considerable leverage in cases where
it has the power to call itself into special session as is the case in 36 states.50 Mississippi
is not such a state.
Other states provide their legislatures with considerable policy influence by enacting laws
that address the duration of a declared emergency. Following the expiration date, the
emergency may only be extended by legislative enactment. States using this approach to
legislative inclusion in the policy making process have experienced mixed results. As
Appendix D notes, Alaska appears to have had a relatively smooth process of legislative
and executive cooperation. Wisconsin, on the other hand, has experienced an impasse
that may have contributed to the increasing COVID-19 caseload in that state. In both Utah
and Kansas, the process has been marked by some conflict, and in Kansas—litigation, but
ultimately these states were able to address the pandemic constructively through the
legislative process and executive action.
Since the Mississippi Legislature cannot call itself into extraordinary session, it would
appear that legislative participation in the policy-making process may be affected only
through the adoption of durational limits on emergencies like those in Alaska, Kansas,
Utah, and Wisconsin, requiring legislative action to extend an emergency. PEER notes that
this is also a check on potential executive action that arguably overreaches the legal
authority to act.
49
Two states, Utah and Kansas discussed as states that limit the duration of emergencies also
allow their Legislatures to terminate an emergency through resolutions.
50
Nicholas Birdsong, “Balancing Legislative and Executive Powers in Emergencies,” National
Conference of State Legislatures’ Legisbrief, Vol. 28, Number 25, (July 2020).
PEER Report #647 29

Additional Recommendations
1. The Legislature should amend MISS. CODE ANN. Section 33-15-5 (1972) to include
within the definition of “natural emergency” the terms “epidemic” and “pandemic”
to ensure that the Governor could invoke the broadest emergency powers in the
event of such occurrences.
2. The Legislature should enact laws to accomplish the following:
a. empower the Governor to direct, in certain instances, that local health care
professionals be used to provide medical assistance in areas impacted by
natural, man-made, or technological disasters and to address the licensure
of out-of-state volunteer providers who come to Mississippi to assist in the
wake of a disaster; and,
b. provide that the Mississippi State Department of Health may, in certain
emergencies, take responsibility for human remains in local jurisdictions.
3. On a periodic basis, the Attorney General’s office should conduct training
sessions, in conjunction with the Mississippi Municipal League and the Mississippi
Association of Supervisors, regarding the proper crafting of local emergency
orders.
30 PEER Report #647

Appendix A: Jacobson in the Era of COVID-19:
Appeals to the Federal Courts
To date, several of the United States Courts of Appeals have heard cases dealing with state
and local responses to the COVID-19 pandemic. Additionally, one case from the United
States Supreme Court dealt with the question of temporary relief. Most of these cases
have involved interlocutory appeals of either denials or grants of temporary relief.51 A
few cases have involved petitions for writs of mandamus in cases where district courts
granted temporary restraining orders against COVID-19 emergency measures.
Appropriate Level(s) of Scrutiny

A question that has arisen in the first months of the pandemic was whether or not
Jacobson vs. Massachusetts, an old precedent, offered states the broad latitude to address
the pandemic through any reasonable, non-discriminatory means, or whether it is greatly
modified by the considerable weight of twentieth century case law mandating tiered, more
nuanced reviews of individual state measures. Especially when those measures impact
preferred freedoms such as those protected by the United States’ Constitution’s First
Amendment, or when protected by the constitutional right to privacy—a right protected
only in common law at the time Jacobson was decided.
In a recent article, Tiered Scrutiny in a Pandemic: Symposium Pandemics and the

Constitution,52 the author contends that Jacobson did not establish a special standard for
review for governmental action taken in the face of an emergency such as a pandemic,
but instead applied the tests of rationality and nondiscrimination that were commonly
applied in reviewing constitutional claims at the dawn of the twentieth century. The
author concludes that since Jacobson establishes no special category of analysis for
emergency measures, levels of constitutional scrutiny established by cases decided in
subsequent years should be applied in reviewing any constitutional claims against an
emergency order. In cases dealing with such issues as economic loss or protective
measures such as mask requirements, applying higher levels of scrutiny could be
significant where First Amendment freedom of association issues arise regarding the size
of gatherings, or in cases where free exercise of religion cases arise. These subjects are
discussed more fully below.53 At least one United States District Court has taken the
approach that tiers of scrutiny are essential in reviewing COVID-19 emergency orders.54
51
Generally when seeking a preliminary injunction prior to trying a case on the merits, a
plaintiff must show (1) that he is likely to succeed on the merits; (2) that he is likely to
suffer irreparable harm in the absence of preliminary relief; (3) that the balance of
equities tips in his favor; and (4) that an injunction is in the public interest. See Winter v.
Natural Resources Defense Council, 555 U.S. 7, 20 (2008).
52
Jeffery Jackson, “Tiered Scrutiny in a Pandemic: Symposium Pandemics and the
Constitution,” ConLaw Now, Vol. 12, No. 39, 2020, 42.
53
See also Lindsay F. Wiley and Stephen I. Vladeck, “Coronavirus Civil Liberties and the
Courts: The Case Against ‘Suspending’,” Judicial Review, Harvard Law Review Forum, Vol.
133, No. 9, (July 2020), wherein the authors equate the level of scrutiny extended to
emergency measures by such Federal Circuits as the Fifth constitutes a suspension of
judicial review. The Fifth Circuit Court case of In re Abbott is discussed infra.
54
See Cnty. of Butler v. Wolf (W.D. Pa. 2020).
PEER Report #647 31

In contrast, several cases from the circuit courts appear to take a different view of what
Jacobson permits in a time of emergency. In re Abbott,55 the United States Court of
Appeals for the Fifth Circuit Court considered a temporary restraining order against a
Texas emergency order that restricted access to abortions. In determining a scope of
review that is proper in such cases, the Court, citing Jacobson, noted:
To be sure, individual rights secured by the Constitution do not disappear

during a public health crisis, but the Court plainly stated that rights could
be reasonably restricted during those times. Jacobson, 197 U.S. at 29, 25
S.Ct. 358. Importantly, the Court narrowly described the scope of judicial
authority to review rights-claims under these circumstances: review is
"only" available if a statute purporting to have been enacted to protect the
public health, the public morals, or the public safety, has no real or
substantial relation to those objects, or is, beyond all question, a plain,
palpable invasion of rights secured by the fundamental law.56
Most cases to date have followed the lead of the Fifth Circuit Court and have treated
Jacobson as creating a special level of scrutiny to be applied in dealing with emergency
measures. Cases involving free exercise of religion, when a regulation or order is directed
toward religion and similar restrictions are not placed on secular uses or activities, appear
to be the area where higher or strict scrutiny has been applied.
The Subject Matter of the Challenges
In general, these cases have tended to address:
• free exercise of religion issues within the context of local or state shelter-at-home
or phased return-to-work orders;
• abortion rights and restrictions on voluntary medical procedures;
• jail environments; and,
• matters related to the conduct of state elections.
These cases reflect the changed constitutional environment since Jacobson was decided
as the twentieth century witnessed the move toward federal courts becoming both the
source and protectors of a broad range of individual rights that were not firmly grounded
in the constitutional doctrines of the early twentieth century.
The following sections discuss these cases by category.
Free Exercise of Religion
State adopted social distancing and limits on the size of gatherings often impact religious
practices. While some denominations self-limited by curtailing traditional worship
services, others continued to conduct services. Some restrictions adopted by state and/or
local governmental entities specifically singled out religious services as activities that were
to be limited. Others made general restrictions under which worship, as well as other
gatherings, would be limited.
55
In re Abbott, 954 F.3d 772, (5th Cir. 2020) (Abbott II).
56
Supra. See Also In re Abbott, 956 F.3d 696, (5th Cir. 2020) (Abbott IV).
32 PEER Report #647

1. Roman Catholic Diocese of Brooklyn v. Cuomo57
Most recently, the United States Supreme Court granted a temporary injunction against
the enforcement of a state of New York executive order that limited attendance at religious
services in areas most impacted by the COVID-19 pandemic. While Governor Cuomo
chose not to pursue enforcement, the parties pressed their argument for a temporary
injunction.
In Cuomo, a divided court issued a preliminary injunction against the executive orders.
The Per Curiam opinion cited the fact that the two zones set out in the order, the red and
orange zones, sharply restricted permissible attendance at services to 10 persons and 25
persons respectively. These restrictions, on the surface, singled out religious services in
differential treatment that was not imposed upon secular entreprises.
Noteworthy was the separate concurrence of Justice Kavanaugh who noted that the case
differed sharply from cases rendered earlier this year, particularly South Bay United
Pentecostal Church v. Newsome,58 in that it dealt with orders creating a preferred class of
secular enterprises that were treated more leniently than religious gatherings, and by the
extremely restrictive requirements of the attendance maximums set in the New York court
order establishing the red and orange zones.
2. South Bay United Pentecostal Church v. Newsome59
Differing from the outcome in Roman Catholic Diocese of Brooklyn is the case of South
Bay United Pentecostal Church v. Newsome. The South Bay Pentecostal Church sought a
temporary injunction against the enforcement of California’s restrictions on group
gatherings. The California restrictions barred religious institutions from using more than
25% of capacity or having more than 100 congregants for a service. Similar restrictions
were placed on secular gatherings. The United States Court of Appeals for the Ninth
Circuit Court denied a preliminary injunction against the restrictions citing their neutrality.
The United States Supreme Court, by a 5 to 4 vote, denied the church’s petition for an
injunction. In a separate concurrence, Chief Justice Roberts noted:
• Similar or more severe restrictions were placed on secular gatherings.
• The order exempted or was more lenient towards dissimilar activities, such as
operating grocery stores, banks, and laundromats, where people neither
congregated in large groups nor remained in close proximity for extended periods.
• The precise question of when restrictions on particular social activities should be

lifted during the pandemic is a dynamic and fact-intensive matter subject to
reasonable disagreement.
• Citing Jacobson, Chief Justice Roberts wrote:
Our Constitution principally entrusts the safety and the health of the
people to the politically accountable officials of the States to guard and
protect.
57
592 U.S. — (2020).
58
South Bay United Pentecostal Church v. Newsome, 390 U.S. ___ (2020).
59
Supra.
PEER Report #647 33

• When those officials undertake to act in areas fraught with medical and scientific
uncertainties, their latitude must be especially broad. Where those broad limits are
not exceeded, they should not be subject to second-guessing by an unelected
federal judiciary which lacks the background, competence, and expertise to assess
public health and is not accountable to the people.60
Thus, Chief Justice Roberts read the broad regulatory mandate of Jacobson to be
consistent with modern trends in constitutional law in those instances wherein the
regulation complained of is facially neutral and is not applied in a discriminatory fashion.61
Several of the circuit courts of appeals, however, dealt with religious restrictions that dealt
differently with secular and sectarian activity.
3. Roberts v. Neace62
This case involved introductory appeals from a denial of a preliminary injunction against
the Kentucky Governor’s orders restricting types of gatherings during the COVID-19
pandemic sought in the United States District Court for the Eastern District of Kentucky.
One prohibition was for faith-based gatherings.
The first order, issued on March 19, 2020, prohibited all mass gatherings, including, but
not limited to, community, civic, public, leisure, faith-based, or sporting events. It
exempts “normal operations at airports, bus and train stations, shopping malls and
centers, and typical office environments, factories, or retail or grocery stores where large
numbers of people are present, but maintain appropriate social distancing.” The second
order, issued on March 25, 2020, required organizations that are not "life-sustaining" to
close. The order listed 19 broad categories of life-sustaining organizations and over 100
sub-categories spanning four pages. Among the many exempt entities were laundromats,
accounting services, law firms, hardware stores, airlines, mining operations, funeral
homes, landscaping businesses, and grocery stores. Religious organizations do not count
as "life-sustaining," except when they provide "food, shelter, and social services."63
The Court noted that facially neutral regulations with the incidental effect of restricting
free exercise are constitutional so long as they are not imposed arbitrarily or in a
discriminatory fashion. The Court found the restrictions problematic because:
• the restrictions referred to faith-based gatherings; and,
• a lengthy list of permitted activities led the court to believe that the allegedly
neutral restrictions on faith-based and other types of gatherings were in fact
targeted against certain gatherings including faith-based gatherings.
These orders likely fall on the prohibited side of the line, because while they appear to be
generally applicable on the surface, they may not be so in practice due to exceptions for
comparable secular activities. The regulations must be viewed in light of strict scrutiny
tests, which they are not likely to survive.64
60
South Bay United Pentecostal Church, supra at 2.
61
In Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1991), the
United States Supreme Court held that facially neutral regulations with an incidental impact on
free exercise rights if the law is not specifically directed to religious practice and is otherwise
constitutional as applied to those who engage in the specified act for nonreligious reasons.
62
Roberts v. Neace, 958 F.3d. 489, (6th Cir. 2020).
63
Roberts, supra at pages 412 through 413.
64
Roberts, supra at pages 413 through 415.
34 PEER Report #647

Neutral social distancing restrictions applicable to all gatherings could be applied to faith-
based gatherings and worship services without constitutional infirmity as a less restrictive
alternative if they were applied to secular activities alike.65 See the earlier case, Maryville
Baptist Church, Inc. v. Beshear, -- F.3d --, (6th Cir. May 2, 2020).
4. Elim Romanian Pentecostal Church v. Pritzker66
In March 2020, Illinois Governor Pritzker issued an executive order to reduce transmission
of the coronavirus. Specifically, the order provided:
• All public and private gatherings of any number of people occurring outside a
single household or living unit are prohibited, except for the limited purposes
permitted by this Executive Order. Pursuant to current guidance from the CDC,
any gathering of more than ten people is prohibited unless exempted by this
Executive Order. Nothing in this Executive Order prohibits the gathering of
members of a household or residence.
• All places of public amusement, whether indoors or outdoors, including but not
limited to, locations with amusement rides, carnivals, amusement parks, water
parks, aquariums, zoos, museums, arcades, fairs, children's play centers,
playgrounds, funplexes, theme parks, bowling alleys, movie and other theaters,
concert and music halls, and country clubs or social clubs shall be closed to the
public.
Executive Order 2020-32 § 2 (3) (April 30, 2020) Section 2 (5) (vi) adds that people are
free to leave their homes to engage in the free exercise of religion, provided that such
exercise must comply with social distancing requirements and the limit on gatherings of
more than 10 people in keeping with CDC guidelines for the protection of public health.
Religious organizations and houses of worship are encouraged to use online or drive-in
services to protect the health and safety of their congregants.67
The plaintiffs sued, arguing that the limit effectively foreclosed in-person religious
services, even though they were free to hold multiple 10-person services, and that
alternatives—online services or services in parking lots while worshipers remain in cars—
are inadequate. Before the case was argued, Governor Pritzker issued a new order, which
permits the resumption of all religious services, with the 10-person cap as a
“recommendation.” The Seventh Circuit Court of Appeals found that the issue was not
moot but declined to grant relief. Illinois has not discriminated against religion and has
not violated the First Amendment. While warehouse workers and people who assist the
needy may be at the same risk as people who gather for large religious worship services,
movies and concerts are a better comparison group. By that standard, any discrimination
has been in favor of religion. While all theaters and concert halls in Illinois have been
closed since mid-March, sanctuaries and houses of worship were open, though to smaller
gatherings.68
It should be noted that these cases all deal with the issuance or denial of forms of
temporary relief, e.g., temporary injunctions. In the future, these cases may reappear in
the appellate courts.
65
Roberts, supra at page 416.
66
Elim Romanian Pentecostal Church v. Pritzker, June 16, 2020 (7th Cir.).
67
Supra at 3.
68
Supra at 11.
PEER Report #647 35

5. Spell v. Edwards69
The plaintiffs, a Louisiana church and its pastor, filed suit seeking to enjoin stay-at-home
orders restricting in-person church services to 10 congregants. The Fifth Circuit Court of
Appeals held that the appeal of the denial of injunctive relief and related request for an
injunction are moot because the challenged orders expired more than a month prior to
the appeal. In this case, the plaintiffs failed to cite any authority applying the "capable of
repetition" exception to the mootness doctrine to support an injunction against an order
that is no longer in effect.
Abortion Rights and COVID-19 Restrictions on Voluntary Medical Procedures
Many states adopted emergency orders that restricted persons from seeking non-
emergency procedures because medical and surgical procedures entail the use of personal
protective equipment (PPE) that was often in very short supply, particularly during the
early days of the pandemic. These cases placed the broad language of Jacobson in conflict
with the more recent case law prohibiting undue burdens on the rights of women to seek
abortions.
1. In re Abbott70
In this matter, the United States Court of Appeals for the Fifth Circuit heard for the fourth
time a matter dealing with Texas’s emergency orders regarding medical procedures. On
three prior occasions, the United States District Court for the Western District of Texas
issued temporary restraining orders in cases where petitioners charged that the
emergency orders imposed an undue burden on a woman’s right to an abortion.
The emergency order that was the subject of the temporary restraining order was a public
health measure, issued by the Governor of Texas on March 22, 2020, that postponed non-
essential surgeries and procedures until April 22, 2020, to combat the COVID-19
pandemic. The order applied to all licensed healthcare providers in Texas, covered a
broad range of procedures, did not mention abortion, and contained life and health
exceptions committed to a physician's judgment. Specifically, GA-09 required healthcare
professionals and facilities to:
…postpone all surgeries and procedures that are not immediately

medically necessary to correct a serious medical condition of, or to
preserve the life of, a patient who without immediate performance of the
surgery or procedure would be at risk for serious adverse medical
consequences or death, as determined by the patient's physician.
The order did not apply to procedures that, if performed under accepted standards,
"would not deplete the hospital capacity or the personal protective equipment (PPE)
needed to cope with the COVID-19 disaster.”
In an earlier iteration of the case, the Court explained that the respondents' challenge to
the emergency order must satisfy the standards in Jacobson v. Massachusetts. Specifically,
the Court held that:
69
Spell v. Edwards, 962 F. 3d 175, (5th Cir. 2020). On November 11, 2020, Spell sought
injunctive relief from the United States Supreme Court. On November 27, 2020, Justice Alito
refused action on the petition.
70
In re Abbott, (Abbott IV) supra.
36 PEER Report #647

When faced with a society-threatening epidemic, a state may implement
emergency measures that curtail constitutional rights so long as the
measures have at least some "real or substantial relation" to the public
health crisis and are not "beyond all question, a plain, palpable invasion of
rights secured by the fundamental law." Jacobson, 197 U.S. at 31. Courts
may ask whether the state's emergency measures lack basic exceptions for
"extreme cases," and whether the measures are perpetual—that is,
arbitrary or oppressive. Id. at 38. At the same time, however, courts may
not second-guess the wisdom or efficacy of the measures. Id. at 28, 30.
Abbott II, 2020 WL 1685929. We also articulated how the Jacobson
framework works with the Casey undue-burden analysis. Id. at *11
(discussing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)).
A court should "ask[ ] whether GA-09 imposes burdens on abortion that
'beyond question' exceed its benefits in combating the epidemic Texas now
faces." Id. (quoting Jacobson, 197 U.S. at 31). We emphasized that this
analysis would "require[ ] careful parsing of the evidence" and that "[t]hese
are issues that the parties may pursue at the preliminary injunction stage,
where Respondents will bear the burden to prove, by a clear showing, that
they are entitled to relief.71
The Court of Appeals issued a writ of mandamus to the District Court requiring that the
lower court’s temporary restraining order be partially vacated as it did not follow the
Appeals Court’s directive to follow the Jacobson test.
2. In re Rutledge72
The Eighth Circuit Court of Appeals granted a writ of mandamus in part and directed the
District Court to dissolve a temporary restraining order enjoining Arkansas from enforcing
a COVID-19-related health directive against a provider of surgical abortions. The Arkansas
Department of Health (ADH) issued a directive requiring that all non-medically necessary
surgeries be postponed in response to Executive Order 20-03, directing the Arkansas
Department of Health to do everything reasonably possible to respond to and help recover
from the COVID-19 virus.
The Eighth Circuit cited Jacobson as being good for the proposition that states have broad
authority to take actions necessary to protect the public health in the face of a public
health crisis. In this case, the emergency directive bears a real and substantial relation to
Arkansas’s interest in protecting public health in the face of the COVID-19 pandemic. The
directive is not, beyond all question, a prohibition of pre-viability abortion in violation of
the United States’ Constitution because it is a delay, not a ban, and contains emergency
exceptions; and the district court clearly abused its discretion in finding that the provider
is likely to prevail on its argument that the directive will likely operate as a substantial
obstacle to a woman's choice to undergo an abortion in a considerable amount of the
cases in which the directive is relevant.
3. Adams & Boyle, P.C. v. Slattery73
In response to the COVID-19 pandemic, Tennessee Governor Bill Lee issued shelter-in-
place orders. On April 8, 2020, Governor Lee ordered that “[a]all healthcare professionals
and healthcare facilities ...postpone surgical and invasive procedures that are elective and
non-urgent,” until April 30, 2020, in order to preserve personal protective equipment and
71
In re Abbott, (Abbott II), supra.
72
In re Rutledge, 956 F.3d 1018, (8th Cir. 2020).
73
Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, (6th Cir. 2020).
PEER Report #647 37

prevent community spread of COVID-19 through nonessential patient-provider
interactions. Elective and non-urgent procedures were defined as those that can be
delayed because they are not required to provide life-sustaining treatment, to prevent
death or risk of substantial impairment of a major bodily function, or to prevent rapid
deterioration or serious adverse consequences to a patient’s physical condition … as
reasonably determined by a licensed medical provider. A Tennessee woman may receive
a “medication abortion” within 11 weeks from her last menstrual period or a “procedural
abortion” within the first 20 weeks (aspiration or dilation and evacuation), subject to a 48-
hour waiting period and in-person visitation requirements.
On April 17, 2020, the District Court enjoined Tennessee from enforcing that ban against
doctors performing abortion procedures. The Sixth Circuit Court affirmed, acknowledging
the “challenges Tennessee faces in responding to the public health crisis,” but concluding
that the “response, in this one respect, unduly curtailed constitutional liberty." The Court
ordered modification of the injunction so that it prohibits the state from enforcing the
ban against plaintiffs to the extent that they provide procedural abortions to specific
patients, including women who, in the good-faith professional judgment of the provider,
will likely be forced to undergo a dilation and evacuation procedure instead of an
aspiration if their procedures are delayed. Regarding the Jacobson case, the Sixth Circuit
Court wrote:
Leave aside the myriad factual differences between this case and
Jacobson—asking a person to get a vaccination, on penalty of a small fine,
is a far cry from forcing a woman to carry an unwanted fetus against her
will for weeks, much less all the way to term—and the challenge of
reconciling century-old precedent with the Supreme Court's more recent
constitutional jurisprudence. The bottom line is that, even accepting
Jacobson at face value, it does not substantially alter our reasoning here.
As of today, a woman's right to a pre-viability abortion is part of the
fundamental law.74
The Court noted that emergency orders and abortion have been subjects in litigation since
the COVID-19 pandemic became a matter of national concern. Other cases have taken
different analytical approaches to the problem but the court concluded that clearly the
case considered in Abbott was distinguishable as it allowed procedures in cases where
significant amounts of PPE would not be used.
4. Robinson v. Attorney Gen.
The Court of Appeals for the Eleventh Circuit Court upheld a preliminary injunction issued
against Alabama’s emergency order of March 27, 2020, which mandated the
postponement of "all dental, medical, or surgical procedures," with two exceptions: (a)
those necessary to treat an emergency medical condition; and (b) those necessary to avoid
serious harm from an underlying condition or disease, or necessary as a part of a patient's
ongoing and active treatment, insofar as it imposed an undue burden on a woman’s right
to seek an abortion.
The Eleventh Circuit considered Jacobson, but read it together with cases holding that the
Fourteenth Amendment generally protects a woman's right to terminate her pregnancy.
Reading these two lines of cases together, the Eleventh Circuit Court concluded that the
April 3, 2020, order (if applied to proscribe abortions unless necessary for the mother's
74
Slatery, supra at p. 927.
38 PEER Report #647

life or health) imposed a "plain, palpable invasion of rights, yet had no real or substantial
relation to the state's goals.75
The Court noted that the state cited both In re Abbott and In re Rutledge as the authority
to support the constitutionality of the order, but further noted that in both cases, the two
circuits in question cited the lower courts for failing to follow the Jacobson tests. In
Robinson, the District Court had considered Jacobson in light of the recent line of cases
supporting a woman’s right to abortion.76
Jail Conditions
1. Valentine v. Collier77 (Texas)
The plaintiffs filed suit alleging that Texas’s adoption and implementation of measures
guided by changing CDC recommendations in regards to the COVID-19 pandemic do not
go far enough. The plaintiffs filed a class action lawsuit alleging violations of the Eighth
Amendment's prohibition against cruel and unusual punishment and the Americans with
Disabilities Act, seeking a preliminary injunction. The Fifth Circuit Court granted the
state's motion to stay the district court's preliminary injunction, which regulates the
cleaning intervals for common areas, the types of bleach-based disinfectants the prison
must use, the alcohol content of hand sanitizer that inmates must receive, mask
requirements for inmates, and inmates' access to tissues (amongst many other things).
The Court held that the state is likely to prevail on the merits of its appeal because: (1)
after accounting for the protective measures the state has taken, plaintiffs have not shown
a "substantial risk of serious harm" that amounts to "cruel and unusual punishment"; and
(2) the District Court committed legal error in its application of Farmer v. Brennan, by
treating inadequate measures as dispositive of the defendants' mental state. In this case,
even assuming that there is a substantial risk of serious harm, the plaintiffs’ lack evidence
of the defendants' subjective deliberate indifference to that harm. The Court also held
that the state has shown that it will be irreparably injured absent a stay, and that the
balance of the harms and the public interest favor a stay. Finally, the Court held that the
plaintiffs have not exhausted their administrative remedies as required in the Prison
Litigation Reform Act (PLRA), and the District Court's injunction goes well beyond the
limits of what the PLRA would allow even if the plaintiffs had properly exhausted their
claims.
2. Swain v. Junior78
The Eleventh Circuit Court of Appeals held that the District Court erred in issuing a
preliminary injunction against Miami-Dade County and the Director of the Miami-Dade
Corrections and Rehabilitations Department (MDCR), requiring defendants to employ
numerous safety measures to prevent the spread of COVID-19 and imposing extensive
reporting requirements.
75
Robinson v. Attorney General, 957 F.3d. 1171, 1186, (11th Cir., 2020).
76
Robinson, supra.
77
Valentine v. Collier, 956 F.3d 797, (5th Cir. 2020). Note the United States Supreme
Court declined to vacate the Fifth Circuit Court’s stay of the District Court’s preliminary
injunction. See the Supreme Court declined to vacate the stay, Valentine v. Collier,
(Valentine II), 140 S. Ct. 1598, (2020) (mem.). See also Valentine v. Collier, October 13,
2020 (5th Cir. 2020).
78
Swain v. Junior, June 15, 2020 (11th Cir. 2020).
PEER Report #647 39

Inmates had filed a class action suit challenging the conditions of their confinement under
42 U.S.C. 1983 and seeking habeas relief under 28 U.S.C. 2241 for the named plaintiffs
with a "medically vulnerable" subclass of inmates.
The Eleventh Circuit Court of Appeals held that the plaintiffs failed to show a substantial
likelihood of success on the merits of their constitutional claim for deliberate indifference.
The Court explained that the District Court erred in relying on the increased rate of
infection and in concluding that the defendants' inability to ensure adequate social
distancing constituted deliberate indifference. In this case, the Court simply could not
conclude that, when faced with a perfect storm of a contagious virus and the space
constraints inherent in a correctional facility, the defendants acted unreasonably by "doing
their best." The Court also agreed with the defendants that the District Court erred in its
likelihood-of-success-on-the-merits analysis because it failed to consider "two threshold
issues": (1) the heightened standard for municipal liability under Monell v. Department of
Social Services, 436 U.S. 658, (1978); and (2) the exhaustion under the Prison Litigation
Reform Act. Finally, the Court held that the District Court erred in holding, without any
meaningful analysis, that the plaintiffs would suffer irreparable injury absent an
injunction. Furthermore, the District Court erred in its determination of the balance-of-
the-harms and public-interest factors.
Finally, the Eleventh Circuit Court noted that public interest favors a proper allocation of
public-health resources—an allocation that politically accountable (and often local)
officials are best equipped to make. See S. Bay United Pentecostal Church v. Newsom, No.
(Roberts, C.J., concurring in denial of application for injunctive relief) 19A1044, 2020 WL
2813056, (U.S. May 29, 2020).
Overseeing the Political Process
Questions have arisen in several jurisdictions about the safety of the primary election
process in light of the pandemic.
1. Morgan v. White79 (7th Cir. 2020). (Illinois)
Illinois permits voters to place initiatives and referenda on both local and statewide ballots
but requires proponents to collect a specific number of signatures during a period of 18
months. That period ended for Illinois on May 3, 2020, and will end for cities on August
3, 2020.
Morgan and the other plaintiffs challenged the mandatory process for collecting
signatures contending that Illinois’s requirements are unconstitutional, given the social-
distancing requirements adopted by Illinois's Governor during the COVID-19 pandemic.
A United States District Court judge denied relief. The Seventh Circuit Court affirmed, first
holding that at least one plaintiff (Morgan) had standing because Morgan began his
petition campaign before filing suit. The other plaintiffs did not do anything of substance
until the suit was filed. They had plenty of time to gather signatures before the pandemic
began and are not entitled to emergency relief.
Rejecting the argument that the Governor’s orders denied the plaintiff’s First Amendment
free speech rights, the Court concluded that the orders concern conduct, not what anyone
may write or say. Although the orders make it hard to obtain signatures, so would the
reluctance of people to approach strangers during a pandemic. The U.S. Constitution does
79
Morgan v. White, July 8, 2020 (7th Cir. 2020).
40 PEER Report #647

not require any state or local government to put referenda or initiatives on the ballot; if
the Governor’s orders, coupled with the signature requirements, amount to a decision to
skip all referenda for the 2020 election cycle, there is no federal problem.
2. Texas Democratic Party v. Abbott 80 (Texas)
During the Coronavirus pandemic, Texas Governor Greg Abbott postponed the May 2020
primary runoff elections to July 14, 2020; doubled the period for early voting by personal
appearance; and declared that election officials would issue further guidance on social
distancing and other precautions.
The plaintiffs filed federal claims that Texas’s rules for voting by mail discriminate by age,
restrict political speech, are unconstitutionally vague, and that an open letter sent by the
Texas Attorney General on the subject of voting was a threat constituting voter
intimidation. The Fifth Circuit Court of Appeals denied relief, referring to the District
Court’s “audacity” in entering a sweeping preliminary injunction, weeks before the
election, that required officials to distribute mail-in ballots to any eligible voter who wants
one. Citing Jacobson, the Fifth Circuit Court of Appeals stated that the U.S. Constitution
principally entrusts the safety and the health of the people to politically accountable state
officials and the spread of the virus has not given unelected federal judges a roving
commission to rewrite state election code.
SOURCE: PEER staff analysis.
80
Texas Democratic Party v. Abbott, 961 F.3d 389, 397, (5th Cir. 2020).
PEER Report #647 41

Appendix B: COVID-19 Cases in the State Courts
Several significant cases regarding COVID-19 emergency orders have been litigated in the
state courts. Unlike the overwhelming majority of cases in the deferral courts, these
decisions often deal with important issues related to the roles and responsibilities of the
executive and legislative branches during a pandemic and matters related to the interplay
between statutory provisions when states adopt multiple laws dealing with emergency
responses to health emergencies.
The following sections discuss the most important of these cases.
Statutory Construction and the Interplay between Multiple Emergency Statutes
Elkhorn Baptist Church et. al. v. Brown81
In this case, the Oregon Supreme Court was faced with a question of statutory
construction dealing with the proper authority for the issuance of certain gubernatorial
emergency orders. Oregon has a general emergency statute much like Mississippi’s
statute that has been amended over the years to cover a broad range of emergencies.
Oregon also has a separate Public Health Emergency Act which empowers the Governor
to issue emergency orders of limited duration.
Several plaintiffs challenged the orders issued by the Governor requiring limits on
gatherings and social distancing and sought a temporary injunction to bar enforcement
of the orders pending trial. The trial court granted the preliminary injunctions on the
basis of the orders having expired. The trial court reasoned that the short duration of
medical emergencies authorized in the state’s public health emergency legislation
controlled the matter being more specific than the general emergency act.
On appeal, the Oregon Supreme Court granted a writ of mandamus to the Governor
directing the dissolution of the temporary injunction. In taking such action, the Court
found it necessary to unravel the confusion created by multiple emergency statutes in the
state. The Supreme Court concluded that the durational requirements of the public health
emergency legislation did not control in this case. The more specific legislation
containing limits of 28 days on public health emergency declarations was nothing more
than a supplemental power conferred on the Governor by the Legislature. The general
statute with no limits was the statute under which the Governor issued the orders.
Consequently, the trial court’s mistake was to conclude that by expiration of the time
limits provided by the public health emergency statute, the orders were not enforceable.
This case provides an example of what can happen when states enact multiple emergency
statutes.
Unlawful Delegation of Powers/Separation of Powers
In re Certified Questions from the United States District Court, Western District of
Michigan Southern Division Midwest Institute of Health PLLC v. Governor of Michigan et
al,82 October 2, 2020,
81
Elkhorn Baptist Church et. al. v. Brown, 366 Or 506, ___ P 3d___, (2020).
82
In re Certified Questions from the United States District Court, Western District of
Michigan Southern Division Midwest Institute of Health PLLC v. Governor of Michigan et al,
(Michigan, October 2, 2020).
42 PEER Report #647

This involves questions certified to the Michigan Supreme Court by the United States
District Court for the Western District of Michigan in a cause of action filed by a health
care provider challenging an emergency order of the Governor limiting access to non-
essential medical procedures. The questions certified were:
1. whether, under the Emergency Powers of the Governor Act, MCL § 10.31 et seq.
or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has
the authority after April 30, 2020, to issue or renew any executive orders related
to the COVID-19 pandemic; and,
2. whether the Emergency Powers of the Governor Act and/or the Emergency
Management Act violates the Separation of Powers and/or the Non-Delegation
Clauses of the Michigan Constitution.
Regarding the first question, the Michigan Supreme Court concluded that the Governor
had no power to issue the order after April 30, 2020, under the Emergency Powers Act
(EPA).
Regarding the second question, a majority of the Court concluded that the emergency
powers of the Emergency Powers of the Governor Act violated the Michigan Constitution
as it constituted an unconstitutional delegation of legislative power to the Governor.
The rationale for the second conclusion is as follows:
• In reviewing governmental action in light of the nondelegation doctrine, three

factors are of importance, the scope of the powers conferred, the specificity of
standards under which the power is carried out, and the duration of the power
conferred.
• As to scope, the Court noted the considerable breadth of the powers conferred
under the Emergency Powers of the Governor Act, specifically authorizing the
Governor to enter orders “to protect life and property or to bring the emergency
situation within the affected area under control. Orders to this end were issued
touching a broad range of activities reordering social life and to limiting, if not
altogether displacing, the livelihoods of residents across Michigan and
throughout wide-ranging industries.
• As to duration, under the EPGA, the power to protect life and property were
indefinite and continued until a declaration by the Governor that the emergency
no longer existed. Hence, if the emergency lasted for months or longer, the
power to issue emergency orders likewise would also exist for months or longer.
• As to standards, when the scope is broad, and the duration is indefinite, the
standards constraining the exercise of power need to be precise to protect
against arbitrary exercises of power. Under the EOGA, the only constraints were
provisions requiring reasonable orders, rules, and regulations as necessary to
protect life and property or to bring the emergency situation within the affected
area under control. Neither term gives the Governor genuine guidance as to how
to exercise the authority delegated by the EPGA nor constrains gubernatorial
actions in any meaningful manner. To be constitutional the statute delegating
authority must contain standards to constrain the exercise of power.
PEER Report #647 43

• Severing an unconstitutional portion of the statute would not be possible in this
case because the legislative purpose of the EPGA is to invest the Governor with
sufficiently broad power of action in the exercise of the police power of the state
to provide adequate control over persons and conditions during such periods of
impending or actual public crisis or disaster.
Wisconsin Legislature v. Palm83 (May 2020).
In this case, the Wisconsin Legislature challenged orders issued by the state’s Secretary
of Health and Human Services regarding COVID-19 safety precautions for social distancing
and business openings. The Governor of Wisconsin had also issued an emergency order,
but because of its durational requirements in law, the substance of that order was not in
question.
The Wisconsin Supreme Court concluded that any order issued by the Secretary fit within
the provisions of Wisconsin’s Administrative Procedures Act regarding notice and
comment. In this case, the subject of delegation of lawmaking power was considered by
the Court. Similar to the Michigan Supreme Court, the Wisconsin Supreme Court
concluded:
We have allowed the Legislature to delegate its authority to make law to

administrative agencies. But as we stated in Martinez v. DILHR, 165 Wis.
2d 687, 697, 478 N.W.2d 582 (1992), such a delegation is allowed only if
there are "adequate standards for conducting the allocated power." Stated
otherwise, "[a] delegation of legislative power to a subordinate agency will
be upheld if the purpose of the delegating statute is ascertainable and
there are procedural safeguards to ensure that the board or agency acts
within that legislative purpose." J.F. Ahern Co. v. Wis. State Bldg. Comm'n,
114 Wis. 2d 69, 90, 336 N.W.2d 679 (Ct. App. 1983) (quoting Watchmaking
Examining Bd. v. Husar, 49 Wis. 2d 526, 536, 182 N.W.2d 257 (1971)).
When a grant of legislative power is made, there must be procedural

safeguards to prevent the "arbitrary, unreasonable or oppressive conduct
of the agency." J.F. Ahern, 114 Wis. 2d at 90...
Unlike the Michigan Supreme Court, the Wisconsin Supreme Court concluded that the
safeguards included adherence to administrative procedures which the Secretary has not
followed. Since administrative procedures for adopting emergency rules had not been
followed, the orders were unenforceable.
Kelly v. Legislative Coordinating Council84
Kansas’ Legislative Coordinating Council, made up of members from both houses, has
the power to act on behalf of the Legislature when that body is not in session as provided
under general laws. Following a legislative extension of the Governor’s initial 15-day
emergency order, the Council issued a revocation of an extended emergency order issued
by the Governor. This order covered, among other things, limits on mass gatherings. The
Governor challenged the exercise of legislative power by the Council through a proceeding
directed against the Council membership.
83
Wisconsin Legislature v. Palm, 391 Wis. 2d. 497, 942 N.W. 2d. 900, (2020).
84
Kelly v. Legislative Coordinating Council, 460 P.3d 832, (Kansas, 2020).
44 PEER Report #647

The Kansas Supreme Court granted the Governor’s remedy for a declaration that the
Council’s order was a nullity. Under the resolution extending the original emergency, the
Governor had to first seek an extension of an emergency from the State Finance Council
before the Legislative Coordinating Council could meet to either extend or terminate the
emergency. No application was ever made to the Finance Council as contemplated by the
Legislature.
Wolf v. Scarnati85
In Wolf, the Pennsylvania Supreme Court was posed with a question of whether or not the
state’s constitutional requirement that bills and resolutions be presented to the Governor
for his approval would apply in a case where the Pennsylvania General Assembly has
passed a resolution terminating a state of emergency declared by the Governor.
Under Pennsylvania law, the General Assembly has the power to terminate an emergency
by concurrent resolution. Upon such resolution, the Governor must issue a proclamation
terminating the state of emergency.
The General Assembly adopted such a resolution ending the emergency; however, the
Governor did not issue a proclamation calling an end to the declared emergency.
In the ensuing litigation, the Governor argued that the resolution did not comport with
the Pennsylvania Constitution’s requirement for the presentment of bills and resolutions
to the Governor for approval. The Court strictly followed the text of the constitutional
provision on presentment and concluded that there was no constitutional exception for
the type of resolution the Pennsylvania General Assembly adopted, therefore it had to be
presented to the Governor as contemplated by Pennsylvania’s Constitution. This renders
Pennsylvania’s legislative procedure for checking executive power ineffectual.
Friends of Danny DeVito v. Wolf86
This case challenged the authority of the Governor to issue order closing non-essential
businesses on several grounds. These grounds included:
• a lack of statutory authority under emergency laws;
• a lack of constitutional authority under the Pennsylvania Constitution; and,
• violations of the Takings Clause, procedural due process, and equal protection.
Statutory Authority: The Pennsylvania Supreme Court found that the term “natural
disaster” includes a pandemic. The types of natural disasters in the statute do not include
epidemics or diseases. Their common trait is that they involve suffering and loss of life or
property. This is sufficiently broad to include a pandemic. Additionally, the purpose of
Pennsylvania’s emergency statute was “to empower the state to address issues of
vulnerability of people and communities of this Commonwealth to damage, injury and
loss of life, and property resulting from disasters," and to "strengthen" the Governor's role
"in prevention of, preparation for, response to, and recovery from disasters."
Separation of Powers Argument: The Court reasoned that the Legislature contemplated
that in emergency cases, the Governor would be given certain authority to make law
85
Wolf v. Scarnati, (Pa. 2020).
86
Friends of Danny DeVito v. Wolf, 222 A. 3d. 874, (Pa. 2020).
PEER Report #647 45

through executive orders. This extends to such matters as control over the "ingress and
egress to and from a disaster area, the movement of persons within the area and the
occupancy of premises therein." Inherent in that authorization is the Governor's ability to
identify the areas where movement of persons must be abated and which premises will
be restricted in order to mitigate the disaster. That the Governor utilized business
classifications to determine the appropriate areas and premises to be directly impacted
by the disaster mitigation is likewise inherent in the broad powers authorized by the
General Assembly.
Takings Clause Issues: The Court also reasoned that there are differences between
takings for public use and takings under police power. Additionally, these were limits to
business operations of short duration that do not constitute takings for purposes of the
United States Constitution.
Procedural Due Process: The petitioners contended that they were denied procedural
due process in instances where orders were devised without notice or an opportunity to
be heard. The Court reasoned that in cases such as one posed by COVID-19 protection
of the health and safety of the public is a paramount governmental interest which justifies
summary administrative action. Indeed, deprivation of property to protect the public
health and safety is one of the oldest examples of permissible summary action.
Equal Protection: DeVito, a candidate for the Pennsylvania General Assembly, argues
that he is deprived of equal protection because he had to close his campaign office but
his opponent, an incumbent, is allowed to keep his office open. The Court makes clear
that all similarly situated persons had to close their offices. Sitting members of the
assembly had to continue to carry out their public functions and therefore were
distinguishable from a candidate. Campaigns for office by incumbents and challengers
alike were treated the same way.
First Amendment Issues: DeVito argues that the ban on gatherings keeps his supporters
from meeting relative to his campaign for office. The Court reasons that there were
alternatives such as communicating electronically that enable supporters to communicate.
States may place content neutral time, place, and manner regulations on speech and
assembly “so long as they are designed to serve a substantial governmental interest and
do not unreasonably limit alternative avenues of communication.”
As to the issue of unconstitutional delegation, several advisories have been posted on the
Internet regarding this issue.
In an advisory entitled, Can He Do That? The Governor’s Authority to Suspend or Modify

Statutes in an Emergency Like the COVID-19 Pandemic,87 a Connecticut law firm has
opined that a Connecticut statute88 provides for the Governor to:
“…modify or suspend in whole or in part...any statute, regulation or

requirement" that he finds to be "in conflict with the efficient and
expeditious execution of civil preparedness functions or the protection of
the public health. “
The attorneys note that this language Is excessively broad and actually allows the
Governor to modify statutes in the event of an emergency. This might constitute an
87
“Can He Do That? The Governor’s Authority to Suspend or Modify Statutes in an
Emergency Like the COVID-19 Pandemic,” Day, Pitney LLP.
88
Connecticut General Statutes § 28- 9 (b) (1).
46 PEER Report #647

unconstitutional delegation as there is seemingly no limit to the Governor’s application of
discretion in this case.
More specific is the guidance from lawyers with the California Constitution Center89
regarding the state’s broad authority granted to the Governor to declare emergencies.
California allows the Governor to declare an emergency when:
…the Governor finds that circumstances amounting to a state of

emergency exist, and either a local authority requests the declaration or
the Governor finds that local authority is inadequate to cope with the
emergency.
Under California law, a state of emergency is:
…the duly proclaimed existence of conditions of disaster or of extreme peril

to the safety of persons and property within the state caused by such
conditions as fire, flood, storm, epidemic, riot, drought and other
calamities.
Despite this breadth, the California Constitution Center’s lawyers believe that this is not
unconstitutional because the Legislature has retained for itself the authority to enter the
fray at any time and end the emergency, by concurrent resolution, thereby reclaiming its
power. Because of the capacity for legislative intervention, the granting of this power to
the Governor is neither permanent nor irrevocable.
It appears that breadth, lack of meaningful limitations, and the lack of Legislative
intervention could result in Mississippi’s statute suffering from the same defect as the
statute in the Michigan case.
89
“The Governor’s Powers Under the Emergency Services Act,” California Constitution Center, Blog,
(March 19, 2020).
PEER Report #647 47

Appendix C: Model Acts and Their Critiques
Efforts to reform state emergency laws, especially regarding pandemics and bioterrorism,
have not been without considerable discussion and criticism. Perhaps the most
noteworthy attempt to change state emergency laws since the civil defense era, is the
Model State Emergency Health Powers Act (MSEHPA). Developed by the Center for Law
and the Public Health at Georgetown and Johns Hopkins Universities at the request of the
Centers for Disease Control and Prevention, the Model Act was first released for public
review and comment in October 2001. The release was timely as the United States had
recently been the scene of significant acts of foreign terrorism and concerns over possible
follow-up acts, particularly bioterrorism, were of considerable concern.
The Model State Emergency Health Powers Act outlines five areas where state public health
professionals must act.90 These areas are:
• Preparedness: The MSEHPA facilitates systematic planning for a public health

emergency. A state public health emergency plan must include coordination of
services; procurement of vaccines and pharmaceuticals; housing, feeding, and
caring for affected populations (with appropriate regard for their physical and
cultural/social needs); and the proper vaccination and treatment of individuals.
• Surveillance: The MSEHPA provides authority for surveillance of health threats

and continuing power to follow a developing public health emergency (i.e.,
detecting a problem, identifying it as a health emergency, then tracking and
measuring the episode or outbreak). It requires prompt reporting by health care
providers, pharmacists, veterinarians, and laboratories and also provides for the
exchange of relevant data among lead agencies such as public health, emergency
management, and public safety.
• Management of property: The MSEHPA provides comprehensive powers to

manage property and protect persons and to safeguard the public’s health and
security. Public health authorities may close, decontaminate, or procure facilities
and materials to respond to a public health emergency; safely dispose of infectious
waste; and obtain and deploy health care supplies.
• Protection of persons: This is a function that may entail enforced testing,

treatment, isolation and quarantine. Similarly, the MSEHPA permits public health
authorities to physically examine or test individuals as necessary to diagnose or
to treat illness; vaccinate or treat individuals to prevent or ameliorate an infectious
disease; and isolate or quarantine individuals to prevent or limit the transmission
of a contagious disease. The state public health authority also may waive licensing
requirements for health care professionals and direct them to assist in the
vaccination, testing, examination, and treatment of patients.
• Communication: The state public health authority must provide information to

the public regarding the emergency response, including protective measures, to
be taken and information regarding access to mental health support.
The Model State Emergency Health Powers Act also provides for governors to declare
public health emergencies, which trigger these particular powers and duties. Since being
90
Lawrence O. Gostin, “Public Health Law in An Age of Terrorism: Rethinking Individual
Rights and Common Goods,” Health Affairs, Vol. 21, No.6 (November/December, 2002).
48 PEER Report #647

proposed, some states have adopted portions of the MSEHPA, particularly the parts that
relate to declarations of public health emergencies.91
Additionally, beginning in 2000, the Turning Point Public Health Statute Modernization
Collaborative (Turning Point Collaborative)—part of a larger Robert Wood Johnson
Foundation effort to strengthen public health infrastructures—brought together state
representatives with federal, tribal, and local public health partners and private sector
actors (e.g., health professionals and institutions) to “transform and strengthen the legal
framework for the public health system through a collaborative process to develop a
model public health law.” After three years of development, the Turning Point
Collaborative released the final version of the Turning Point Model State Public Health Act
(Turning Point Act) in September 2003, proposing it as a template of key public health
powers for state, tribal, and local governments considering public health law
modernization. While the Turning Point model legislation addressed far more than
matters strictly related to pandemics or other public health emergencies, its article on
public health emergencies was greatly influenced by the previously discussed Model State
Emergency Health Powers Act. Regarding public health emergencies, the Turning Point
Act contains sections dealing with:
• surveillance;
• reporting;
• mandatory testing and evaluation;
• compulsory treatment;
• quarantine and isolation; and,
• security safeguards.
Criticism of the Model Acts

Criticism of the acts came quickly from libertarians, both civil and economic, policy
increment lists, and some experts who believe that the compulsive aspects of emergency
laws are no longer workable in the modern age.
Libertarian Criticism Based on Legal Overbreadth: Criticism of the Model State

Emergency Health Powers Act came swiftly from groups as ideologically diverse as the
American Civil Liberties Union (ACLU) and the American Legislative Exchange Council
(AEC).92 Both for example have found cause for concern in the acts very broad and
imprecise definition of a public health emergency, and believe this breadth could allow
minor health matters, such as an annual outbreak of the flu to rise to the level of an
emergency triggering broad powers over people and their property.93 The lack of judicial
review of the declaration has been a major concern for the ACLU.
91
See page 12.
92
For a full discussion, see A Legal Analysis of Emergency Powers Given in Mississippi Law
Regarding Pandemics and Bioterrorism, PEER Committee, Report #491, October 10, 2006.
93
The MSEHPA also defines the term "public health emergency" as follows:
A "public health emergency" is an occurrence or imminent threat of an illness or health
condition that:
(1) is believed to be caused by any of the following:
(i) bioterrorism;
PEER Report #647 49

Both the ACLU and ALEC have raised concerns regarding the broad executive powers that
would require mandatory treatment and possible quarantine of persons who are infected
with an illness that gave rise to the declaration of a public health emergency. These
commentators note that these powers provide little in the way of exceptions to the
exercise of state power and because of the broad definition of what constitutes an
emergency, any number of illnesses (e.g., chicken pox, AIDS) could be the triggers to a
round-up of persons into quarantine camps.
Finally, the American Legislative Exchange Council raised the concern that the MSEHPA
gives broad authority to confiscate and ration private property. Many of the provisions in
the model act authorize a public health agency to make “quick takes” of property, thereby
taking immediate possession prior to making any determination of just compensation for
property.
Criticism Based on the Need for Voluntary Cooperation and Accountability: One
influential critic, George Annas of Boston University, criticized the general tenor and
approach of the Model State Emergency Health Power Act. While raising concerns over
the possible constitutionality of provisions giving broad authority to public health officials
in the face of an emergency, Professor Annas also noted that the compulsive tone of the
MSEHPA is also a problem. Specifically, he noted:
Just as important as the constitutional questions posed by the model act is

the pragmatic question of whether it is likely to undermine the public's
trust in public health — trust that is absolutely essential for containing
panic in a bioterrorist-induced epidemic. Unlike the situation at the turn of
the last century, for example, we have televised news 24 hours a day, cell
phones, and automobiles, making a large-scale quarantine impossible
unless the public believes that it is absolutely necessary to prevent the
spread of fatal disease and is fairly and safely administered. Enactment of
a law that made it a crime to disobey a public health officer would rightly
engender distrust, because it would suggest that public officials could not
provide valid reasons for their actions.94
Equally noteworthy, was his criticism of the broad immunity granted to persons acting
under the authority of a declared emergency. Regarding broad and “vague” powers
granted to public health officials and care providers under the MSEHPA, Annas noted:
These vague standards are especially troublesome because the act's

incredible immunity provision remains unchanged. Thus, all state public
health officials and all private companies and persons operating under
their authority are granted immunity from liability for their actions (except
for gross negligence or willful misconduct), even in the case of death or
permanent injury. Out-of-state emergency health care providers have even
greater protection; they are given immunity from liability for everything
(ii) the appearance of a novel or previously controlled or eradicated infectious agent or

biological toxin; and,
(2) poses a high probability of any of the following harms:
(i) a large number of deaths in the affected population;
(ii) a large number of serious or long-term disabilities in the affected population; or,
(iii) widespread exposure to an infectious or toxic agent that poses a significant risk of
substantial future harm to a large number of people in the affected population.
94
George J. Annas, “Bioterrorism, Public Health, and Civil Liberties,” New England Journal of
Medicine, (April 25, 2002).
50 PEER Report #647

but manslaughter. In my opinion, such immunity is something public health
authorities should not want (even though it may have superficial appeal),
because it means that they are not accountable for their actions, no matter
how arbitrary. The immunity provision thus serves only to undermine the
public's trust in public health authorities. Citizens should never be treated
against their will by their government, but if they ever are, they should be
fully compensated for injuries suffered as a result.95
Criticism Based on a Policy Preference for Incrementalism: Approaching both model

acts from a different perspective was a publication prepared in 2003 by the Law Center
of Louisiana State University (LSU).96 This ”White Paper” noted that the principal impetus
for the MSEHPA was a belief by the drafters that comprehensive reform of public health
laws is needed because laws that have been in force and effect for the past eighty to one
hundred years in most states are most likely unconstitutional and could not be enforced
today.
The authors noted that this position does not bear up to careful research and that the
courts in most states have been willing to uphold old state laws so long as the
enforcement of these laws is not arbitrary. Thus, quarantine laws or immunization laws
that have been on the books since the days of smallpox scares and the threat of
tuberculosis are most likely still legislative mandates that the courts will enforce.
The LSU commentators also note that the old laws leave room for administrative flexibility
in creating procedures for carrying out public health mandates that the MSEHPA does not
have. The commentators note that this in itself is not beneficial to the public interest.
Finally, the MSEHPA can conflict with other provisions that states have enacted to address
both natural emergencies and health-related problems that have been in force and effect
for years. Most states, including Mississippi, have a general emergency statute and some
specialized public health statutes that already address such subjects as planning,
detection, protection of individuals, property oversight, and declaration of emergencies.
New acts overlaid onto the existing laws could create administrative confusion and
possibly impair the functioning of old laws that have heretofore worked.97
In general, the LSU commentators have expressed a preference for an incremental

approach to the enactment of public health reform. This would include taking provisions
of model acts that can be woven into the fabric of a state’s laws rather than adopting a
major overhaul of laws addressing public health emergencies.
Our most recent experience with COVID-19 litigation nationwide illustrates the wisdom of
the LSU critique. Cases cited in Appendix A of this report outline the most significant
cases handed down during the first five months of the COVID-19 pandemic. To date, the
overwhelming majority of these constitutional challenges involving such matters as face
masks, mandatory closure of certain businesses, quarantines for persons entering to the
state, and neutral restrictions on the number of persons who may gather at indoor and
outdoor venues have resulted in the states’ positions being vindicated. In these cases,
the age of the laws being applied appears not to have been problematic for the courts
reviewing them. Additionally, states have used their existing authority to craft such
95
Supra.
96
“Legislative Alternatives to the Model State Emergency Health Powers Act,” LSU Program
in Law, Science, and Public Health White Paper #2, (April 21, 2003).
97
See Appendix B for a discussion of state court litigation in Michigan, Oregon, and
Pennsylvania where the existence of two statutes covering similar subject matter caused
confusion that had to be resolved by court action.
PEER Report #647 51

reforms as shelter-at-home orders and home quarantines that have been tailored to fit the
current problems posed by COVID-19.
SOURCE: PEER staff analysis of various critiques of model health emergency legislation.
52 PEER Report #647

Appendix D: Statutory Limitations on the
Duration of a Declared Emergency
On page 21, this report mentions six states: Alaska, Kansas, Montana, Utah, Washington,
and Wisconsin, in which emergency management statutes limit the duration of a declared
emergency. These statutes generally require the Legislature to take some action to
reaffirm or modify an emergency if it is to remain in effect. The following sections briefly
summarize these states’ experiences during the ongoing COVID-19 pandemic.
Limited Legislative Authority in Montana and Washington Has Had No Discernable

Impact on Legislative Oversight
Montana: In Montana two CODE provisions relate to the duration of emergencies and
disasters. These sections98 provide a 20-day and a 45-day limit on emergencies and
disasters declared by the Governor. Emergencies or disasters in both sections may only
be extended by a joint resolution of the Legislature, or when there is a nationally declared
emergency or disaster.
The Montana Governor’s COVID-19 Executive Order 2-2020 is effectively extended

indefinitely because on March 13, 2020, President Trump issued a proclamation declaring
a national emergency. It states that the COVID-19 outbreak in the United States constitutes
a national emergency beginning on March 1, 2020.
Washington: State laws in Washington place some limits on the Governor’s authority to
suspend laws during an emergency. The specific limitation is as follows:
(4) No order or orders concerning waiver or suspension of statutory

obligations or limitations under subsection (2) of this section may continue
for longer than thirty days unless extended by the legislature through
concurrent resolution. If the legislature is not in session, the waiver or
suspension of statutory obligations or limitations may be extended in
writing by the leadership of the senate and the house of representatives
until the legislature can extend the waiver or suspension by concurrent
resolution. For purposes of this section, "leadership of the senate and the
house of representatives" means the majority and minority leaders of the
senate and the speaker and the minority leader of the house of
representatives.99 Thus, when the legislature is out of session the Governor
must only give notice of an extension to legislative leadership of an
emergency that suspends the provisions of general laws to the legislative
leadership.
This limited form of legislative oversight has been criticized by at least one commentator
on public policy, who suggested looking to several states where the Legislature can by
resolution completely terminate an emergency. The article also cites the Wisconsin
statute where emergencies are to end after 30 days unless extended by the Legislature.100
98
Montana Code Ann. Sections 10-3-302 and 10-3-303.
99
RCW Section 43.06.220 (Revised Code of Washington).
100
“Should Governor’s Emergency Powers Be Subject to Legislative Check?” Washington Policy
Center, (April 3, 2020).
PEER Report #647 53

Utah Legislation Extends Emergency Declarations and Adopts Special Rules for
Pandemic Emergencies
Utah emergency management statutes limit the duration of a state of emergency. Unless
extended by the Legislature, a state of emergency may only last for 30 days.101 In response
to the COVID-19 pandemic, the Utah Legislature called itself into special session in April
2020 to address several related issues. One piece of Legislation adopted was the
Pandemic Response and Consultation Act (H.B. 3005, Third Special Session). This act sets
out special rules for a state of emergency brought about by pandemics or epidemics. For
pandemics and epidemics, the Governor must declare an emergency and consult with
legislative leadership on the subject of executive action. The Legislature may by joint
resolution revoke or rescind an emergency declaration. The Governor may not suspend
the requirements of notice to legislative leadership or the Legislature’s power to revoke
or rescind an emergency.
The Utah Legislature also adopted resolutions in both regular and special sessions that
ultimately extended the emergency to August 20, 2020. During August, the Legislature
chose not to extend the emergency. In September, the Governor issued a new executive
order extending the emergency, but the order did not direct such things as business
closures, distancing, or the use of PPE which tend to be the types of requirements that
generate litigation. Recently, the Utah Department of Health executive director has issued
state public health orders under separate statutory authority directing the wearing of
masks and other restrictions on gatherings and business activities.
Alaska: A Single Bill Addresses All Matters
In Alaska, an emergency has a duration of only 30 days unless extended by the

Legislature.102 Following the Governor’s emergency declaration in March 2020, the
Legislature enacted S.B. 241 which extended the emergency until November 15, 2020,
and also addressed other important matters such as unemployment compensation,
evictions, emergency rules for licensure of professionals, and other matters that states
have often addressed in general bills dealing with the pandemic.
Wisconsin and Kansas: Stalemates, Legislation, Vetoes, and Litigation
Wisconsin: Like Utah, Wisconsin limits the duration of an emergency.103 An emergency

may not extend past 60 days unless, through joint resolution, the Legislature agrees to
an extension. While the Wisconsin General Assembly passed Assembly Bill 1038 that was
signed into law on April 15, 2020, addressing various needs associated with the COVID-
19 pandemic, it took no action by joint resolution to extend the Governor’s state of
emergency.
As discussed in Appendix B, Wisconsin’s Department of Health and Human Services

Executive Director issued a broad range of orders under statutory powers that are
separate and distinct from the Governor’s emergency powers. These orders included
social distancing requirements and were the subject of litigation that resulted in the
Wisconsin Supreme Court finding that these orders were in fact “rules” for purposes of
the state’s Administrative Procedures Act that had to be adopted in accordance with the
notice and comment requirements of that act.104 Subsequently, the Governor chose to
issue an additional state of emergency proclamation and related orders directing the use
101
See Utah Code Ann. § 53-2a-206.
102
See AK (Alaska Statutes) Section 26.23.020.
103
Wis. Stat. Ann. § 323.10.
104
Wisconsin Legislature v. Palm, supra at Appendix B.
54 PEER Report #647

of masks and social distancing without regarding the requirements of state law. The
plaintiffs have challenged the orders as violative of state law as the emergency has not
been extended by the Legislature. To date, one state judge has denied a temporary
injunction against their enforcement stating that the purpose of the 60-day limit was not
to require legislative review and acquiescence, but to require the Governor re-evaluate the
need for an emergency. 105 It would appear likely that there will be further litigation in
Wisconsin.
Kansas: In Kansas, the Governor’s declaration of an emergency is effective for 15 days.

Governor Laura Kelly may seek extensions from the State Budget Council and ratification
from the Legislative Coordinating Council (LCC), a body comprised of members of the
Legislature. Additionally, the Legislature has the power to grant extensions through joint
resolutions.106 The executive and legislative response to the pandemic in Kansas has been
marked by considerable conflict that has been evidenced by vetoes and litigation. Briefly,
Kansas’s legal history of the pandemic is as follows:
• On March 12, 2020, Governor Kelly declared a state of disaster emergency.
• Within the 15-day statutory window, the Legislature adopted House Concurrent
Resolution (HCR) 5025 extending the Governor's declaration to May 1, 2020. The
resolution provides in part that any revised orders of the Governor must be
presented to the Kansas State Finance Council for approval. Following their
approval, the Legislative Coordinating Council, a seven-member body comprised
of legislative members, may consider and ratify such extensions.
• On April 7, 2020, the Governor added subject matter to her March 12, 2020,
emergency proclamation. Among other things, it temporarily prohibited, subject
to several exemptions, "mass gatherings," defined as "any planned or
spontaneous, public or private event[s] or convening[s] that will bring together or
[are] likely to bring together more than 10 people in a confined or enclosed space
at the same time." Executive Order 20-18 rescinded and replaced an earlier,
substantially similar executive order. But Executive Order 20-18 differed in that it
removed "[r]religious gatherings" and "[f]uneral or memorial services or
ceremonies" from the list of "activities or facilities" exempt from the temporary
prohibition of mass gatherings.
• On April 8, 2020, the Legislative Coordinating Council convened pursuant to HCR

5025. By a 5 to 2 vote, it revoked Executive Order 20-18.
• Governor Kelly filed suit to test the legal effect of the Legislative Council’s actions.
• The Kansas Supreme Court ruled on April 11, 2020, that the revocation was not in
conformity with the terms of HCR 5025,107 as that the plain language of the
resolution provided that the Governor first seek an extension of an emergency
from the State Finance Council before the LCC had any authority to speak for the
Legislature regarding the continuation of an emergency.
105
Lindoo et.al. v. Evers, October 12, 2020 (Polk County Circuit Court).
106
Kansas Revised Statutes Section 48-924.
107
See Kelly v. Legislative Coordinating Council, 460 P.3d 832, (Kan. 2020) and discussion
in Appendix B.
PEER Report #647 55

• Following the above discussed court action, the Kansas Legislature enacted H.B.
2054, which limited the Governor’s authority to issue orders closing businesses
or imposing other restrictions on the residents of Kansas after May 31, 2020.
• The Governor sharply criticized the legislation and issued a veto message om May
21, 2020. The Governor then issued a new emergency declaration and called a
special session of the Legislature for June 3, 2020.
• On June 4, 2020, the Legislature enacted S.B. 2016 which extended the state of
emergency until September 15, 2020, but limited the Governor’s authority to
restrict businesses or to place any restrictions on election or on any rights
protected by the Kansas Bill of Rights. The bill also required that at least six
members of the Kansas State Finance Committee who are legislators vote to
approve any new declarations issued by the Governor.
• On September 11, 2020, The State Finance Committee voted to extend the state
of emergency to October 15, 2020.
• Many legislators note that improvements in the Kansas emergency management

statute need to be considered. Some believe that broader legislative oversight
beyond leadership serving on the Finance Commission needs to be considered.108
108
“Legislators Target Governor’s Emergency Powers, Recommend Changes,” Salina Journal,
(September 24, 2020). Some suggestions include setting out in law what businesses must do to
address COVID-19 concerns, and requiring the Governor to call a special session after an
emergency has lasted for a certain number of days to consider renewing an emergency
declaration.
56 PEER Report #647

PEER Committee Staff
James A. Barber, Executive Director
Legal and Reapportionment Performance Evaluation

Ted Booth, General Counsel Lonnie Edgar, Principal Analyst
Ben Collins David Pray, Principal Analyst
Barton Norfleet Jennifer Sebren, Principal Analyst
Kim Cummins
Matthew Dry
Administration Samuel Hearn
Deborah Hardy Matthew Holmes
Gale Taylor Taylor Mullins
Sarah Williamson
Julie Winkeljohn
Quality Assurance and Reporting
Ray Wright
Tracy Bobo
Performance Accountability
Linda Triplett, Director
Kirby Arinder
Debra Monroe-Lax
Meri Clare Ringer
PEER Report #647 57

58 PEER Report #647

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Report to the Mississippi Legislature

A Legal Analysis of Mississippi’s

Joint Committee on Performance Evaluation and Expenditure Review

TELEPHONE: Post Office Box 1204 OFFICE:

November 17, 2020

Honorable Tate Reeves, Governor

Senator Lydia Chassaniol, Chair

This report does not recommend increased funding or additional staff.

Letter of Transmittal ....................................................................................................................................... i

Report Highlights ............................................................................................................................................v

Appendix B: COVID-19 Cases in the State Courts .................................................................................. 42

Appendix C: Model Acts and Their Critiques .......................................................................................... 48

Appendix D: Statutory Limitations on the Duration of a Declared Emergency................................ 53

PEER Report #647 iii

Exhibit 1: Appointments Affected by Executive Order 1499 .......................................................... 24

iv PEER Report #647

Scope and Purpose

PEER Report #647 1

2 PEER Report #647

U.S. Supreme Court Decision Relative to Emergency Powers

Jacobson v. Commonwealth of Massachusetts

PEER Report #647 3

4 PEER Report #647

Mississippi Supreme Court Decision Relative to Emergency Powers

PEER Report #647 5

Subsequently, the Mississippi Supreme Court upheld as reasonable a legislative delegation

Mississippi’s Early Laws Addressing Emergencies

Mississippi law addressing emergencies has evolved incrementally since the

Riots and Insurrection or Military Threats

6 PEER Report #647

PEER Report #647 7

Mississippi’s early statutes regarding emergencies were narrowly tailored to address

Emergency Management Laws Since the 1980s

Emergencies Requiring Immediate Response

8 PEER Report #647

Legal Definitions of a State of Emergency26

Governor’s Authority to Seek Federal Disaster Assistance

Definitional Changes and Statements of Public Policy28

PEER Report #647 9

10 PEER Report #647

Criteria for Evaluating the Adequacy of a State’s Emergency Powers

PEER Report #647 11

12 PEER Report #647

(k) “Technological emergency” means an emergency caused by a

PEER Report #647 13

14 PEER Report #647

(7) Any person other than a practicing or licensed physician, or person in

PEER Report #647 15

16 PEER Report #647

PEER Report #647 17

Communication and Dissemination of Information

18 PEER Report #647

State Government Officials’ Responses to the COVID-19 Pandemic

Governor Reeves’s COVID-19 Executive Orders from March Through

PEER Report #647 19

Mississippi’s emergency management law provides for unlimited executive authority

As presented on pages 12 through 18, Mississippi’s current emergency management law

20 PEER Report #647

The lack of a provision in Mississippi’s emergency powers laws mandating legislative

Broad, unchecked powers of the Governor may constitute an unconstitutional

Generally, lawmaking power is restricted to the legislative branch of government.

PEER Report #647 21

22 PEER Report #647

1) To suspend the provisions of any regulatory statute prescribing the